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Sallis v. Portfolio Ambassador East

September 25, 2008

JUANA SALLIS, PLAINTIFF,
v.
PORTFOLIO AMBASSADOR EAST, LLC, D/B/A/ AMBASSADOR EAST HOTEL, DEFENDANT.
PORTFOLIO AMBASSADOR EAST, LLC, D/B/A AMBASSADOR EAST HOTEL, THIRD-PARTY PLAINTIFF,
v.
OMNI HOTELS MANAGEMENT CORPORATION, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Juana Sallis ("Sallis") filed a complaint against Defendant Portfolio Ambassador East, LLC ("Portfolio") under Title VII of the Civil Rights Act of 1964, alleging that (1) she was subjected to a hostile work environment while employed by Portfolio at the Ambassador East Hotel in Chicago when she was sexually harassed by two supervisors in violation of 42 U.S.C. § 2000e-2(a)(1); and (2) that Portfolio discharged her in violation of the anti-retaliation provisions of 42 U.S.C. § 2000e-3 because she complained about the sexual harassment.*fn1 On February 5, 2008, Portfolio filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure [42], asserting that (1) Portfolio was not Sallis's employer when the alleged sexual harassment took place or when Sallis complained of the harassment; and (2) Portfolio could not have discharged Sallis in retaliation for her sexual harassment complaint because it was not aware of such a complaint when the decision to discharge her was made.

On December 15, 2005, Omni Hotels Management Corporation ("Omni") sold the Ambassador East Hotel to Portfolio. Portfolio has filed a third-party complaint against Third-Party Defendant Omni alleging that Omni has breached its contractual duty to indemnify Portfolio pursuant to an indemnification clause in the purchase and sale agreement between the parties regarding transfer of the Ambassador East Hotel. Portfolio seeks defense costs and indemnification with regard to Sallis's claim. Omni also has filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure [47], asserting that Omni has a duty to indemnify Portfolio only for Omni's actions occurring prior to December 15, 2005, and that Sallis's claim does not relate to any of Omni's actions prior to December 15, 2005.

For the following reasons, the Court denies Defendant Portfolio's 12(c) motion for judgment on the pleadings [42]. The Court denies in part and grants in part Third-Party Defendant Omni's 12(c) motion for judgment on the pleadings [47].

I. Standard of Review

A Rule 12(c) motion for judgment on the pleadings permits a party to move for judgment after both the plaintiff's complaint and the defendant's answer have been filed. Fed.R.Civ.P. 12(c). Rule 12(c) motions are reviewed under the same standard as Rule 12(b)(6) motions to dismiss. Piscotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). Therefore, when a defendant moves for judgment on the pleadings, the plaintiff's complaint must satisfy two conditions. First, "the complaint must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon which it rests." Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (quoting E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)). Second, its allegations must "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a speculative level." Id.In making that determination, the court construes the complaint in the light most favorable to the plaintiff, taking the facts alleged to be true and drawing all possible inferences in her favor. See Piscotta, 499 F.3d 633; Tamayo, 526 F.3d at 1081.

As a preliminary matter, this Court also must determine which facts are to be evaluated as part of the "pleadings" for consideration under a Rule 12(c) motion. For purposes of a Rule 12(b)(6) motion, the Seventh Circuit has held that the pleadings "consist generally of the complaint, any exhibits attached to, and supporting briefs." Thompson v. Ill. Dept. of Professional Regulations, 300 F.3d 750, 753 (7th Cir. 2002). More specifically, "the facts asserted in the memorandum filed in opposition to the motion to dismiss, but not contained in the complaint, are relevant to the extent that they could be proved consistent with the allegations." Evans v. U.S. Postal Service, 428 F. Supp. 2d 802, 805 (N.D. Ill. 2006) (quoting Dausch v. Ryske, 52 F.3d 1425, 1428 n. 3 (7th Cir. 1994)). Because a Rule 12(c) motion operates according to the same standards as a Rule 12(b)(6) motion, this Court will consider facts presented in Plaintiff's brief in opposition to the Rule 12(c) motion as part of the "pleadings" if those facts are consistent with the allegations in the complaint.

II. Plaintiff's Claims Against Portfolio

A. Factual Background*fn2

Plaintiff Juana Sallis had been employed as a housekeeper at the Ambassador East Hotel in Chicago, Illinois, since May 3, 2000, and had satisfactorily performed the duties of her job. On November 23, 2005, Plaintiff was notified by a co-worker that another employee, Larry Cason, accused her of engaging in sexual acts with him. The hotel was then owned by Third-Party Defendant Omni.*fn3 Plaintiff reported the incident to human resources director Elvia Munoz. Munoz and other members of the hotel management staff, including general manager Paul Lauritzen and executive housekeeper Bill Smith, "failed to take any action against Cason to have him cease and desist from engaging in his sexually offensive and derogatory behavior." Compl., Ex. A-2.*fn4 As a result, Plaintiff's work environment became "hostile, egregious, outrageous, and offensive" and "severely affected [her] ability to perform the essential duties of her job." Id.

On December 15, 2005, Omni sold the Ambassador East Hotel to Portfolio. After the transfer in ownership, Portfolio retained most of Omni's hotel staff.*fn5 On December 23, 2005, Plaintiff asked permission of her supervisors, Linda Smith and Ricardo Perez, to leave early, and she was authorized to do so as long as she signed out, which she did. Compl., Ex. A-3; Pl. Ans. at 4.*fn6 On December 30, 2005, Plaintiff was discharged from her job as a housekeeper at the Ambassador East Hotel by Paul Lauritizen, Bill Smith, and Portfolio human resources director Linda Noriega. Plaintiff was told that she was being discharged because she left work early on December 23, 2005. Plaintiff did not receive any documentation validating the reason for her discharge.

On April 4, 2006, Plaintiff filed a Charge of Discrimination with the Illinois Department of Human Rights and the U.S. Equal Employment Opportunity Commission ("EEOC"). On March 1, 2007, the EEOC issued a "right to sue" letter authorizing Plaintiff to sue under Title VII within ninety days. Plaintiff filed this lawsuit against Portfolio on May 24, 2007.

B. Discussion

Portfolio moves for judgment on the pleadings as to Plaintiff's allegations of hostile work environment sexual harassment and unlawful retaliation under Title VII. Portfolio argues that Plaintiff cannot establish a prima facie sexual harassment claim and that, in any event, Portfolio could not be held liable because it had no notice of the harassment, which occurred before it purchased the Ambassador East Hotel. Portfolio further contends that Plaintiff cannot establish a retaliation claim because Portfolio was not aware of Plaintiff's harassment complaint when it decided to fire her and because Plaintiff was fired for legitimate reasons.

1. Hostile Work Environment

Claim Title VII, in relevant part, provides that "it shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, the Supreme Court held that sexual harassment that creates a hostile work environment constitutes discrimination based on sex that alters the terms, conditions, or privileges of employment in violation of Title VII. 477 U.S. 57, 66-67 (1986). In order to establish a prima facie case of a hostile work environment, a plaintiff must show that: (1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff's work ...


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