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FARINA v. CICCONE FOOD PRODUCTS

May 12, 2005.

KATHY FARINA, ROSANNA GELARDI and ADDOLORATA CUPOLA, Plaintiffs,
v.
CICCONE FOOD PRODUCTS, INC., Defendant.



The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant Ciccone Food Products, Inc. ("Ciccone Food") motion for summary judgment. For the reasons stated below, we deny Ciccone Food's motion for summary judgment in its entirety.

BACKGROUND

  Plaintiff Kathy Farina ("Farina") was employed by Ciccone Food as an office assistant from July of 2001 until August of 2002, when Farina's employment was terminated. Farina alleges that the owner of Ciccone Food, Salvatore Ciccone ("Ciccone"), the general manager of Ciccone Food, Joseph Minerva ("Minerva"), and other management at Ciccone Food regularly engaged in sexual harassment.

  Farina alleges an array of alleged improper comments and misconduct. For example, Farina alleges that Minerva, the general manager, asked her questions such as what color underwear she wore, asked her if she performed certain sexual acts, and asked if she would perform a sexual act upon Minerva. Farina also alleges that Minerva asked her about her sexual activity outside of work and whether or not she had sex in her car. Farina also alleges that Minerva made jokes and gestures of a sexual nature in her presence. Farina also claims that Minerva repeatedly stood behind her and rubbed himself against her. Farina claims that when she complained about Minerva's conduct, Minerva retaliated by delivering her orders late which negatively reflected upon Farina's work performance. Farina also alleges that Ciccone swore in her presence calling her stupid and an idiot. Farina claims that Ciccone's conduct created an intimidating and hostile atmosphere at work. Farina claims that Ciccone dealt with all female employees in such a manner.

  Co-plaintiff Rosa Gelardi ("Gelardi") worked for Ciccone Food as an office assistant from July of 2001 until August of 2002, when she claims she was constructively discharged. Some examples of the conduct alleged by Gelardi include her contention that Ciccone, while alone with Gelardi, made improper comments of a sexual nature. Gelardi also alleges that Ciccone told her he dreamed of them being in bed together. Gelardi alleges that Ciccone told her that certain parts of her looked good and asked her to come and sit on his lap. Ciccone also allegedly asked to kiss Gelardi and asked to touch her breasts. Ciccone also allegedly asked to have sex with Gelardi and inquired about sex between Gelardi and her husband. Ciccone also allegedly told Gelardi: "Be careful because when I have a chance when we are alone I will grab you." (Compl. 10). According to Gelardi, on numerous occasions Ciccone grabbed her hand or tried to rub her legs. Gelardi also claims that on one occasion Ciccone grabbed both of her hands and tried to forcibly kiss her. Gelardi also claims that Ciccone told her that he would grab her in the supply room if he found her there alone. Gelardi also claims that she heard Minerva make comments about Farina's underwear, co-Plaintiff Dora Cupola's ("Cupola") breasts, and about the performance of sexual acts. Gelardi also alleges that Ciccone used vulgarities in the workplace and intimidated female employees.

  Cupola was also an office assistant and she alleges that Minerva asked her to take off her shirt and asked if he could look under her skirt. Minerva also allegedly asked Cupola about her preferences when having sex and what sexual acts Cupola was willing to engage in. Minerva also allegedly asked Cupola to perform sexual acts upon him and Minerva allegedly made comments about Cupola's breasts. Minerva also allegedly made oral comparisons between Minerva and a poster hanging on the wall which depicted women in their underwear. Cupola also claims that on some occasions when she picked up invoices there was pornography included in the invoices. Cupola also alleges that Ciccone used vulgar language and intimated female workers. Cupola claims that she was constructively discharged in August of 2002. Plaintiffs brought a two count complaint alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. ยง 2000e et seq. (Count I), and retaliation in violation of Title VII (Count II). Ciccone Food has moved for summary judgment.

  LEGAL STANDARD

  Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

  DISCUSSION

  I. Local Rule 56.1

  Plaintiffs filed a statement of additional facts pursuant to Local Rule 56.1. Ciccone Food has not filed any response to Plaintiffs' statement of additional facts and we note that Ciccone Food even acknowledges in its reply brief that it received Plaintiffs' statement of additional facts. (Reply 2). We also note that we specifically denied Ciccone Food's prior motion for summary judgment without prejudice due to its failure to comply with Local Rule 56.1. Since, Ciccone Food has not responded to Plaintiffs' statement of additional facts, the facts are deemed undisputed and admitted. Dent v. BestFood, 2003 WL 22025008, at *1 n. 1 (N.D. Ill. 2003); Malec v. Sanford, 191 F.R.D. 581, 585 (N.D. Ill. 2000). We note that Plaintiffs have filed a motion specifically seeking to have Plaintiffs' statement of additional facts deemed admitted, but as we have already applied Local Rule 56.1 and deemed the statement of additional facts admitted, Plaintiffs' motion is denied as moot.

  II. Hostile Work Environment

  Ciccone Food argues that none of the Plaintiffs were subjected to a hostile work environment. Under Title VII, an employer is prohibited from maintaining a workplace that 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 work environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986)). Factors considered in determining whether there is a hostile work environment include: 1) the "frequency of discriminatory conduct," 2) "its severity," 3) whether conduct is "physically threatening or humiliating" or merely offensive, 4) whether conduct "unreasonably interferes with [the plaintiff's] work performance," and 5) the "social context in which events occurred." ...


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