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Lori Flood v. Washington Square Restaurant

November 30, 2012


The opinion of the court was delivered by: James F. Holderman, Chief Judge


Plaintiff Lori Flood, a former waitress and hostess at Washington Square Restaurant, Inc. ("the Restaurant") filed this suit against the Restaurant, Bill Liapis (the owner and manager of the Restaurant), Marilyn Hackett (a supervisor at the Restaurant), and Jose Montoya (a cook at the Restaurant). Flood's five-count complaint alleges that each of the defendants are liable for sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Count

I); that the Restaurant, Liapis, and Hackett are liable for retaliation under Title VII (Count II); that Montoya is liable for battery (Count III); that each of the defendants is liable for intentional infliction of emotional distress (Count IV); and that Montoya and the Restaurant are liable under the Illinois Gender Violence Act, 740 ILCS 82 (Count V). (Dkt. No. 2 ("Compl.").) Pending before the court is the motion of the Restaurant, Liapis, and Hackett to dismiss Counts I, II, IV, and V of the Complaint as to each of them. (Dkt. No. 15.) Considering each of the defendants separately, for the reasons explained below, that motion is granted in part, denied in part, and taken under advisement in part.


The following facts, which the court must accept as true for purposes of a motion to dismiss, are drawn from plaintiff Lori Flood's complaint. In March of 2011, Flood worked as a waitress and hostess at the Restaurant, where defendant Jose Montoya worked as a cook. (Compl. ¶ 10.) Sometime in March 2011 while Montoya and Flood were both working a morning shift, Montoya slapped Flood on the buttocks as she was walking by him. (Id. ¶ 11.) Flood complained about Montoya's action to Bill Liapis, the Restaurant's owner and manager, but Liapis did nothing other than give Montoya a verbal warning. (Id. ¶ 12.) Subsequently, during the morning shift on April 13, 2011, Montoya approached Flood, grabbed her breasts, forcefully twisted them, and pushed Flood up against a wall, causing her to cry out in pain. (Id. ¶ 14.)

Flood immediately informed her supervisor Marilyn Hackett of the incident, and Hackett informed Liapis. (Id. ¶¶ 15-16.) Liapis then met with Flood and Montoya in Liapis's office, where Montoya confessed to grabbing and twisting Flood's breasts. (Id. ¶¶ 17-18.) Flood explained to both Hackett and Liapis that she did not want to work with Montoya because she was afraid of him.

The next morning, April 14, Flood filed a formal criminal complaint against Montoya, who was arrested at the Restaurant and charged with battery. (Id. ¶¶ 20-21.) An "agent" of the Restaurant posted bond for Montoya to get him out of jail. (Id. ¶ 22.) Eventually, Montoya pleaded guilty to the battery charge. (Id. ¶ 30.)

Despite Montoya's actions and the criminal charge against him, the Restaurant never disciplined Montoya or even arranged for him to work different shifts than Flood, despite Flood's requests not to work with Montoya. (Id. ¶¶ 23, 25.) Instead, Hackett told Flood that the Restaurant would not change Flood's work schedule, and that if Flood did not return to work she would be fired. (Id. ¶ 26.) Hackett also told Flood that the Restaurant would not fire Montoya, because "good cooks were hard to find." (Id. ¶ 27.)

In the weeks following the battery, Flood received numerous phone calls from Hackett calling on behalf of Liapis. (Id. ¶ 24.) Hackett urged Flood to drop the criminal charges against Montoya because she should "think about Montoya and his three children." (Id.) Hackett then threatened Flood with retaliation, telling her that she would "have no case with Workers Compensation" and would not be able to support herself if she did not return to work. (Id.)

Flood was unable to return to work because of the fear and anxiety that she suffered at the prospect of working with Montoya. (Id. ¶ 28.) Consequently, Hackett and Liapis terminated her employment at the Restaurant. (Id. ¶ 29.) Flood also alleges that the defendants' actions caused her "great embarrassment, humiliation and stress," that she has lost sleep and appetite because of the stress, and that she has sought medical and psychiatric care because of those conditions. (Id. ¶ 31.)

Flood filed a charge of employment discrimination with the Illinois Department of Human Rights ("IDHR") on August 30, 2011. (Dkt. No. 15, Ex. A.)*fn1 The IDHR cross-filed her complaint with the EEOC on April 5, 2012 (Dkt. No. 15, Ex. B), and Flood received an EEOC right to sue letter on April 30, 2012 (Dkt. No. 15, Ex. E). Flood filed her complaint on July 20, 2012.


Under the Federal Rules of Civil Procedure, a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While "detailed factual allegations" are not required, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

The complaint must "include sufficient facts 'to state a claim for relief that is plausible on its face.'" Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 903 (7th Cir. 2011) (quoting Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). In ruling on a Rule 12(b)(6) motion, the court "construe[s] the . . . [c]omplaint in the ...

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