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Ponticiello v. Aramark Uniform and Career Apparel Services

September 19, 2006

GAETANA PONTICIELLO, PLAINTIFF,
v.
ARAMARK UNIFORM AND CAREER APPAREL SERVICES, INC. AND RONALD BISHOP, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Gaetana Ponticiello ("Ponticiello" or "Plaintiff") was an employee of Aramark Uniform & Career Apparel Services, Inc., ("Aramark") from 2000 to 2004. For some of this time, she worked with Ronald Bishop ("Bishop"), a general manager at Aramark. While they worked together, Bishop made comments and sent e-mails to Plaintiff that she found offensive. On July 1, 2004, Aramark terminated Plaintiff, allegedly as part of a cost-cutting plan.

Plaintiff complains that Bishop sexually harassed her and that Aramark is liable for his conduct because it was negligent in discovering or remedying Bishop's harassment and failed to promote anti-harassment policies to ensure compliance with Title VII. She also complains that Aramark discriminated against her on the basis of her sex when it moved her around between different offices, did not give her a performance review, did not give her a definite job description and terminated her while retaining a similarly situated male. Finally, she complains that Aramark retaliated against her complaints of sex discrimination by terminating her and refusing to allow her to apply for other positions within the company. Plaintiff asserts her claims against Aramark under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., alleging discrimination based on sex, a hostile work environment and retaliation. Additionally, Plaintiff brings a claim against Aramark for intentional infliction of emotional distress ("IIED"),stemming from Bishop's conduct toward Plaintiff.

Defendants have moved for summary judgment on all counts.*fn1 Construing all facts in a light most favorable to Plaintiff and viewing all reasonable inferences in her favor, Plaintiff has failed to show a genuine issue as to any material fact and Aramark has established that it is entitled to judgment as a matter of law. Specifically, the Court finds as follows: first, because Plaintiff cannot show that she suffered an adverse employment action or was treated less favorably than similarly situated males, Aramark is entitled to summary judgment on Plaintiff's sex discrimination count; second, because Plaintiff cannot show a basis for employer liability for Bishop's allegedly harassing conduct, Aramark is entitled to summary judgment on Plaintiff's hostile work environment count; third, because Plaintiff cannot show that she suffered an adverse employment action that causally was connected to a complaint of sex discrimination, Aramark is entitled to summary judgment on Plaintiff's retaliation claim; and finally, because Bishop's conduct was not extreme and outrageous and the emotional distress Plaintiff suffered was not severe, Aramark is entitled to summary judgment on Plaintiff's IIED claim.

STATEMENT OF FACTS

Aramark is a national company that provides uniform services and apparel. (Defs.' 56.1 ¶ 5.) Bishop works at Aramark as a general manager. (Bishop Dep., p. 22; Defs.' 56.1 ¶ 7.) Ponticiello was employed with Aramark from November 1, 2000 to July 1, 2004. (Ponticiello Dep., p. 8; Defs.' 56.1 ¶ 6.)

Plaintiff's Employment

When Aramark hired Ponticiello, the company maintained several facilities in the greater Chicago area, each designated with a number. (Defs.' 56.1 ¶ 16.) Ponticiello began her employment with Aramark in the 604 office. (Ponticiello Dep., p. 16; Defs.' 56.1 ¶ 19.) At that time, the 604 staff included general manager Rick Gaffney, sales manager Tony McHale, and Bishop as assistant general manager. (Defs.' 56.1 ¶¶ 28, 29.) Bishop later became general manager after Gaffney left the center. (Id.) In April-May 2002, Bishop transferred from 604 to 603. (Bishop Dep., pp. 22-26; Defs.' 56.1 ¶ 30.)

Ponticiello started her employment with Aramark as a new accounts installation coordinator. (Ponticiello Dep., p. 17.) In this position, she supported salespeople with their orders, including writing down the order and seeing it through its delivery. (Id. at p. 20.) Ponticiello soon became dissatisfied with some elements of her job. Namely, Ponticiello said she was being moved around, did not have a proper job description and did not have a performance review. (Defs.' 56.1 ¶ 107.) Prior to May 2003, Ponticiello complained to several people in Aramark's Human Resources department about her situation. (Ponticiello Dep., pp. 37-48; Defs.' 56.1 ¶ 22.) Ponticiello did not believe at the time that her discussion with human resources was a complaint of sex discrimination, though she now regards it as such. (Plf.'s Response ¶ 106.) Ponticiello also contends that her complaint to Aramark Group Controller Barbara Copeland about her employment situation was an internal complaint of sex discrimination. (Ponticiello Dep., p. 206.) Tom McComb of Aramark's Human Resources Department met with Ponticiello to discuss her concerns. (Ponticiello Dep., pp. 38-39.) After several meetings between Ponticiello, her managers and human resources' personnel, Ponticiello became a management trainee. (Id. at pp. 40-43; Defs.' 56.1 ¶¶ 110, 112, 118, 122.) As a management trainee, Ponticiello performed many of the tasks of her former accounts installation coordinator position, as well as inputting the order entry, balancing and receiving checks, and processing orders. (Ponticiello Dep., pp. 21-22.) While Ponticiello felt the position was an advancement at the time, she no longer considers it one. (Id. at p. 54; Plf.'s Response ¶ 119.)

Upon becoming a management trainee, Ponticiello's home office moved from 604 in Chicago to 602 in Arlington Heights. (Ponticiello Dep., p. 55; Defs.' 56.1 ¶ 37.) In late 2003, Ponticiello moved to 701, and later the combined 604/701 facility in Chicago when it opened in 2004. (Id. at ¶¶ 39, 43.) She remained at the combined 604/701 facility until her termination in July 2004. (Id. at ¶ 46.)

Bishop's Interaction with Plaintiff

Bishop and Ponticiello worked together in the 604 center until he moved to 603 in 2002. (Defs.' 56.1 ¶¶ 29, 30.) Prior to the start of the alleged harassment, the two interacted socially on a few occasions, such as when Ponticiello would give Bishop food she had baked, or when the two occasionally would get lunch with other Aramark employees. (Defs.' 56.1 ¶ 169; Ponticiello Dep., p. 270.)

Ponticiello began receiving comments and e-mails from Bishop which she found offensive and harassing in September 2002. (Ponticiello Dep., p. 97; Defs.' 56.1 ¶ 51.) Bishop first made comments to Ponticiello about her dating another Aramark employee, Jason Odom, saying that they should be more open about their dating. (Ponticiello Dep., p. 99; Plf.'s Response ¶ 55.) In 2002, Bishop also sent e-mails to Odom commenting on the relationship. (Ponticiello Dep., pp. 100-102; Ponticiello Ex. 14.)

In March 2003, Odom told Ponticiello that Bishop had said that she needed a lip wax. (Ponticiello Dep., pp. 103-105; Ponticiello Ex. 15.) In response, Ponticiello e-mailed a message to Bishop that asked "if u had ANY recommendations on where i can have some lip waxing services performed! U JERK!" (Id.) Bishop replied that he was not the one that commented on her needing a lip wax, yet added that Ponticiello needed a new boyfriend. (Ponticiello Ex. 15.) Bishop later in the same exchange told Plaintiff what "SKUNK BOY" -- referring to Odom -- will look like when Bishop "get[s] done with him." (Id.) Bishop then attached a picture title "BadBear.jpg" which depicted the partially clothed remains of a person who appears to have been mauled to death by a bear. (Id.) Bishop also attached a photo, entitled "Iloveyou.jpg," depicting human excrement, and a video showing a topless woman doing jumping jacks. (Id.)

Less than a week after this exchange, on March 28, 2003, Ponticiello sent an e-mail to Bishop showing a picture she described as "nasty." (Id. at Ex. 17.) The photo showed a man with part of his intestines hanging outside his body. (Defs.' 56.1 ¶ 68.) Bishop replied that he was "going to PUKE!" (Ponticiello Ex. 17.) Later that day, Bishop sent Ponticiello a picture depicting a person hiding behind the dashboard of a car. (Id. at Ex. 19.) Bishop wrote "[t]his is how they got Jason Odom's family in the country." (Id.) Ponticiello found the e-mail harassing, though Odom considered it a joke and was not offended. (Plf.'s Response ¶ 69; Odom Dep., pp. 60-61.) Bishop also sent Ponticiello several picture attachments and commented that Odom was the "third one to the end," referring to a picture of a man performing a sexual act. (Ponticiello Ex. 20.)

On June 20, 2003, Ponticiello sent an e-mail to several Aramark employees, including Bishop, that contained her weekly work schedule. (Ponticiello Ex. 21.) Bishop responded to Ponticiello that she had not "done SHIT for the last year." (Id.) Ponticiello replied that she was impressed that Bishop "graduated from the College of Ebonics." (Ponticiello Dep., pp. 138-139; Ponticiello Ex. 20.) Twice in the exchange Ponticiello used the phrase "LOL," which means she was "laughing at the situation." (Id.; Ponticiello Dep., p. 145.) Bishop later sent her a video clip, called "Headjob.mpeg," which depicted a man sticking his shaved head inside a woman's vagina. (Ponticiello Dep., p. 151.)

On June 24, 2003, Ponticiello forwarded her schedule to Bishop, to which he responded "HAHAHAHAHA . . . that's funny." (Ponticiello Ex. 22.) She replied "u know what: don't EVEN try it!" (Id.; Ponticiello Dep., p. 147.) The next week, on June 30, Ponticiello again sent her weekly schedule and Bishop responded "[t]his cracks me up every week." (Id. at Ex. 25.) She replied sarcastically "WELL, I'm SOOO very happy that I can be your weekly amusement!" (Id.; Ponticiello Dep., p. 154.) Bishop replied with a picture called companypicnic.jpg which depicted a nearly naked woman lying face down on a picnic table asleep surrounded by beer bottles. (Ponticiello Ex. 25.) Bishop's message insinuated that Plaintiff was the woman in the picture. (Id.)

On July 15, 2003, Bishop sent a picture to Ponticiello to which she replied that Bishop had to stop sending those pictures because they "are absolutely disgusting." (Ponticiello Ex. 27.) She added that Bishop was "one twisted man. YUK! Thanks." (Id.) Bishop responded "looks who (is) talking, I got all this from you." (Id.) Later in the exchange, Ponticiello included the character ":)" which she said represented a "smiley face" and her intent to make light of the situation. (Id.; Defs.' 56.1 ¶ 85.)

Following the July 15, 2003 exchange, Ponticiello did not receive any more allegedly harassing e-mails from Bishop until June 10, 2004. (Defs.' 56.1 ¶ 88.) On June 10, she received from Bishop a video clip called "When the Wife Has A Hedache" attached to an e-mail in which Bishop wrote the text: "I have also attached a little movie that I fell represents what it is like at the Odom house!!!!" (Ponticiello Ex. 31.) The video depicts a fake commercial wherein a man has intercourse with an artificial vagina attached to a bottle of aspirin. (Plf.'s Response ¶ 90.) Following the ...


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