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Partipilo v. Jewel Food Stores, Inc.

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

April 27, 2017

Eileen Partipilo, Plaintiff,
Jewel Food Stores, Inc; Mike Lazzaro; and Mary Maisonet, Defendants.


          Honorable Thomas M. Durkin United States District Judge.

         Eileen Partipilo alleges that her employer, Jewel Food Stores, Inc., denied her promotions and favorable hours because she is a woman and older than 40 years of age (Counts II & IV), and retaliated against her for complaining about this discrimination, (Count I), in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2, e-3. See R. 52-1. Partipilo also alleges Jewel is liable for the hostile work environment created by Partipilo's former supervisor, Ron Major (who is not a defendant) (Count III). Partipilo also claims her current supervisor, Mike Lazzaro, and co-worker Mary Maisonet separately assaulted her in violation of state law, and that Jewel is vicariously liable for these actions (Count VI). Lastly, Partipilo alleges that Jewel's tolerance of Lazzaro's, Maisonet's, and Major's actions amounts to intentional infliction of emotional distress in violation of state law (Count V). Jewel has moved to dismiss the assault and intentional infliction of emotional distress claims for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 60. (The other four counts are not at issue on this motion.) Jewel has also moved for sanctions against Partipilo and her counsel. R. 41. For the following reasons, both motions are granted in part and denied in part.

         Legal Standard

         A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g., Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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 “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘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.'” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.


         Partipilo is 58 years old and since 1977 has worked for Jewel at its store at 2520 Narragansett Avenue in Chicago. R. 52-1 ¶¶ 4, 9. In 2013, Partipilo worked in the produce department and her manager was Ron Major. Id. ¶ 16. Partipilo alleges that she “was passed over for favorable hours and higher paying weekend days” because of her age and because she is a woman. Id. ¶ 15. Partipilo told Major that she planned to complain to the store manager, Rich Cygan, and the union, if Major did not give her the hours she wanted. Id. ¶ 17. Major allegedly responded that he would make Partipilo's job “a living hell” if she complained. Id. ¶ 18. To that end, Major allegedly used a watermelon to pretend to perform oral sex on Partipilo, while making lewd comments, and on another occasion rubbed his hips against her. Id. ¶¶ 22-23. On yet another occasion, Major allegedly commented that yogurt stains on Partipilo's shirt looked like semen and made a gesture insinuating someone had ejaculated on her. Id. ¶ 27. Partipilo complained to store manager Cygan about Major's lewd behavior. Cygan said he would talk to Major about these incidents but told Partipilo not to file a grievance. Id. ¶¶ 25-26.

         In March 2013, Major continued to made “derogatory and defamatory remarks” to Partipilo, and told her that he would not give her the hours she requested because she would not acquiesce to his sexual advances and because she complained to Cygan. Id. ¶ 33. Partipilo again complained to Cygan, and Cygan promised to force Major to assign her to the hours she requested. Id. ¶ 35. When Major learned of this, he screamed at Partiplo, using foul language; berated her for “going behind my back”; and demanded that she listen to him and follow the schedule he set. Id. ¶¶ 39, 43. This encounter caused Partipilo “to cry, tremble, and fear for her life, ” and triggered an asthma attack. Id. ¶ 41. Partipilo gave Cygan a written statement about the incident and Cygan reported it to Jewel's district manager. Id. ¶¶ 48-49. Nevertheless, Major continued to supervise Partipilo. Id. ¶ 53.

         Several days later, Major again threatened revenge against Partipilo because of her complaints to management. Id. ¶ 54. Several days after that, Major allegedly approached Partipilo in a “backroom” of the store, pressed his hips against her, smiled at her, told her that “he was trying to get a knife, ” and that she should be careful. Id. ¶¶ 56-58. Partipilo again complained to Cygan, who responded that Jewel was investigating her allegations and that Partipilo should try to avoid being alone with Major for the time being. Id. ¶ 59. Major continued to make offensive comments toward Partipilo, of both a sexual and otherwise derogatory nature, through April and May 2013. Id. ¶¶ 60-61. Another Jewel employee, James Conduti, complained to Jewel that Major was being hostile and inappropriate to Partipilo. Id. ¶ 62.

         In April 2013, a Jewel human resources staff member contacted Partipilo in the course of investigating Conduti's complaint about Major. During their conversation, Partipilo inquired about her prior complaints about Major, and the staff member said she was unaware of any complaints other than Conduti's. Id. ¶¶ 65-67.

         Major was transferred to another store in May 2013. Id. ¶¶ 70-71. Partipilo filed a complaint with the Equal Employment Opportunity Commission on September 5, 2013. Id. ¶ 74. More than two years later, the EEOC issued a right to sue letter on January 21, 2016. Id. ¶ 88. Partipilo filed this case on April 19, 2016. R. 1.

         After Partipilo filed her original complaint in this case (and more than three years after her conflicts with Major), Partipilo's co-worker, Mary Maisonet allegedly began making sexual gestures and sexual comments to Partipilo on July 21, 2016. R. 52-1 ¶ 89. Specifically, on July 27, 2016, Maisonet made “humping and grinding gesture” in front of Partipilo and several other employees. Id. ¶ 91. Maisonet also allegedly told Partipilo that she “did not have an ass, ” and should try anal sex because it would cause her ass to grow. Id. ¶ 92. Maisonet warned Partipilo that anal sex would hurt at first but that she would eventually enjoy it. Id. ¶ 93. Partipilo complained to her manager about these incidents, and the manager promised to speak with Maisonet. Id. ¶ 95.

         Partipilo continued to be assigned to work with Maisonet. Id. ¶ 96. On August 2, 2016, Partipilo was in “the backroom of the produce department” with two other employees when Maisonet approached her with a banana and told Partipilo that she wanted to stick the banana up Partipilo's “hole.” Id. ¶¶ 97, 99. Partipilo again complained to her manager, and called Jewel's “employee hotline.” Id. ¶¶ 100-01.

         On October 8, 2016, Partipilo was working in “the backroom of the farm stand department” when her assistant manager Mike Lazzaro approached her and started screaming at her about what tasks she should be performing. Id. ¶ 102. When Partipilo asked Lazzaro to repeat his instruction, he allegedly “began punching her with both of his fists in her groin area, legs, and stomach.” Id. ¶ 104. Another employee, Richie Wendland, witnessed this incident. Id. ¶ 105. Partipilo was left in “complete panic, shock, and fear, ” but she was able to ask Lazzaro why he had hit her. Id. ¶¶ 106-07. Lazzaro answered that he was joking around. Id. ¶ 108. Partipilo reported this incident to the store director, but she has continued to be assigned to work with Lazzaro. Id. ¶¶ 110-11.

         Partipilo alleges that Major's, Maisonet's, and Lazzaro's conduct caused her emotional distress, that claims that Jewel is liable based their conduct for intentional infliction of emotional distress because Jewel knew about the conduct and failed to adequately respond. (Partipilo does not bring claims against Major, Maisonet, or Lazzaro individually for intentional infliction of emotional distress.) Partipilo also alleges that Mainsonet and Lazzaro assaulted and/or ...

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