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Boutros v. Park Plaza Northwest Home for Aged

United States District Court, N.D. Illinois, Eastern Division

November 30, 2016



          Young B. Kim United States Magistrate Judge.

         Before the court is Defendant Yehuda Lebovits's motion to dismiss the intentional infliction of emotion distress (“IIED”) claim against him in the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is granted:

         Procedural History

         Sandy Boutros brings this seven-count action against Northwest Home for the Aged d/b/a Park Plaza (“Park Plaza”) and Lebovits. In the original complaint, filed on May 11, 2016, Boutros alleged violations of Title VII of the Civil Rights Act of 1964, violations of the Illinois minimum wage laws, tortious battery, and IIED. (R. 1.) On June 14, 2016, Lebovits moved to dismiss several counts against him. (R. 11.) On June 21, 2016, the parties consented to this court's jurisdiction pursuant to 28 U.S.C. § 636(c). (R. 19.)

         At the motion hearing held on September 22, 2016, the court dismissed with prejudice all Title VII counts brought against Lebovits individually, but allowed Boutros to file an amended complaint to supplement the IIED claim. (R. 32.) During this motion hearing, the court agreed with the legal standard Boutros asserted in opposition to the motion to dismiss but explained that her allegations fell short of the “extreme and outrageous” standard and that other causes of action-rather than IIED-were better suited to address the issues raised by Boutros. The court identified all of the allegations in the complaint that may potentially support the IIED claim and explained why they were deficient.

         On October 6, 2016, Boutros filed a seven-count amended complaint in which Lebovits is individually sued in Count VI (battery) and Count VII (IIED). (R. 33.) Despite the deficiencies the court detailed during the motion hearing, the allegations in the amended complaint are nearly identical to those asserted in the original complaint. Lebovits again moves to dismiss the IIED claim. (R. 36.)

         Boutros's Allegations

         The following facts are set forth in the amended complaint, which the court accepts as true for purposes of a motion to dismiss. See Lavalais v. Village of Melrose Park, 734 F.3d 629, 632 (7th Cir. 2013). Boutros is an Iraqi, Christian woman. (R. 33, Am. Compl. ¶ 7.) In September 2014, Boutros began working as a waitress at Park Plaza, a senior independent living retirement community in Chicago. (Id. ¶¶ 7-8, 10.) By May 2015, she was promoted to the position of head waitress. (Id. ¶ 11.) But three months later, in August 2015, Park Plaza terminated her employment. (Id. ¶ 7.) Lebovits, as Park Plaza's Executive Director, managed Boutros during her employment. (Id. ¶ 9.)

         During her employment at Park Plaza, Boutros assisted her direct supervisor, Executive Chef Sam Landman, with recruiting wait staff and with conducting screening interviews. (Id. ¶ 20.) Lebovits made all final hiring decisions. (Id.) Boutros alleges that Lebovits expressed preference for certain types of employees. He instructed Boutros to hire “young, pretty girls, ” because he wanted “sexy” workers at Park Plaza. (Id. ¶ 19.) He also gave instructions to Boutros not to hire “African Americans, practicing Muslims, or female dishwashers.” (Id.) On at least a couple occasions, Lebovits made personnel decisions based on a candidate's weight and his perception of the candidate's physical attractiveness. (Id. ¶¶ 21-22.) Boutros told Chef Landman that she felt “uncomfortable” with these hiring practices. (Id. ¶ 23.)

         Lebovits was allegedly fond of the female members of the Boutros family and hired several of them to work at Park Plaza. He expressed interest in and hired Boutros's aunt as his secretary. (Id. ¶ 24.) But the aunt quit because Lebovits tried to hug her. (Id.) Lebovits told Boutros and her sister, who also worked at Park Plaza, that they were beautiful and that he wanted to extend his gratitude to their mother. (Id. ¶ 25.) On one occasion, Lebovits gestured to Boutros for a hug, but she rebuffed him. (Id. ¶ 17.) Another time Lifeboats bumped into Boutros and held her waist. (Id. ¶ 18.) He remained there until she pushed him and asked, “What's wrong with you?” (Id.) Boutros reported Lebovits's behavior to Chef Landman. (Id.)

         In July 2015, Lebovits told Chef Landman that he did not want the Park Plaza's chairman of the board in the kitchen during his visit to the facility. (Id. ¶ 26.) Chef Landman relayed the message to Boutros to keep the chairman away from the kitchen area. (Id. ¶¶ 26-27.) As Boutros wheeled the chairman into the dining area for dinner, Lebovits approached from behind and “shoved” Boutros in front of her co-workers. (Id. ¶ 27.) She left the dining area feeling humiliated and in tears. (Id. ¶¶ 28, 68.) That same week, the chairman asked Boutros to meet with him to discuss the incident. (Id. ¶ 30.) After meeting with the chairman, she also met with Lebovits and demanded an apology from him. She also confronted him about work-related issues, including fair wages for her and her wait staff. (Id. ¶¶ 30-32.) The next day, the chairman spoke with Boutros and again asked her to return to work. (Id. ¶ 33.) She expressed concerns about Lebovits but agreed to return. (Id.) During the meeting, the chairman sent Boutros on an errand to the kitchen where she encountered Lebovits staring at her. (Id. ¶ 34.) She feared for her safety, so she called the police and filed a complaint against Lebovits for having shoved her earlier in the week. (Id. ¶¶ 34-35.) Shortly thereafter, Lebovits allegedly suspended her from work without a reason. (Id. ¶ 39.)

         Three weeks later, a Park Plaza board member (“Alan”) contacted Boutros and informed her that she would be returned to work because some employees allegedly threatened “to quit in protest over what Mr. Lebovits had done to her, and this caused too much disruption.” (Id. ¶ 40.) Alan also told Boutros that she would be demoted to the position of staff waitress. (Id.) She returned to work despite the demotion because she needed the work. (Id. ¶ 41.) Upon returning, Boutros alleges that an employee loyal to Lebovits (but not Lebovits himself) began harassing her. (Id. ¶ 42.) Boutros made yet another complaint, this time to Alan, about feeling uncomfortable and afraid. (Id. ¶ 44.) Alan instructed her to leave work while he took care of things. (Id.) On August 7, 2015, Boutros filed a charge of discrimination with the EEOC. (Id. ¶ 45.) A week later, on August 14, 2015, Park Plaza fired Boutros for walking off the job. (Id. ¶ 46.)

         Boutros only added a handful of allegations to supplement the original complaint. The new allegations are primarily focused on hiring practices encouraged by Lebovits. (See, e.g., Id. ¶¶ 20-23.) For example, Boutros describes her role in recruiting wait staff. She conducted screening interviews with Chef Landman, but Lebovits took responsibility for hiring new employees. (Id. ¶ 20.) Another new allegation recounts how Lebovits once decided against hiring a candidate “because of her weight.” (Id. ¶ 21.) On another occasion, Lebovits allegedly instructed Boutros to recruit an attractive candidate to work in his office. (Id. ¶ 22.) All of this, Boutros reports, made her feel “uncomfortable.” (Id. ΒΆΒΆ 20, 23.) ...

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