United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...