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Cesario v. Jewel Food Stores Inc.

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

November 7, 2017

Timothy Cesario, Steve Cieslak, Gregory LaRocco, James Lee, Frank Anderson, Edward Esboldt, and Lester Nelson, Plaintiffs,
Jewel Food Stores, Inc., New Albertson's Inc., and Jewel Osco Southwest LLC, Defendants.



         Plaintiffs managed operations in grocery stores owned and operated by defendants. They allege that defendants treated them poorly and discriminated against them due to their age and disabilities, and they bring claims under two federal statutes. They also bring state-law claims for the intentional infliction of emotional distress. Defendant Jewel Food Stores, Inc., moves to dismiss nine of the twenty-five counts alleged in the complaint for lack of subject-matter jurisdiction and for failure to state a claim. For the following reasons, the motion is granted.

         I. Legal Standards

         A court must dismiss an action if it determines, at any time, that it lacks subject-matter jurisdiction, Fed.R.Civ.P. 12(h)(3), and a defendant may move to dismiss an action for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that jurisdiction is proper. Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001) (citation omitted).

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain factual allegations that plausibly suggest a right to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must accept all factual allegations as true and draw all reasonable inferences in the plaintiff's favor, but need not accept legal conclusions or conclusory allegations. Id. at 678-79. With a 12(b)(6) motion, a court may consider only allegations in the complaint, documents attached to the complaint, and documents that are both referred to in the complaint and central to its claims. Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998).

         II. Facts

         Plaintiffs Timothy Cesario, Steve Cieslak, Gregory LaRocco, James Lee, Frank Anderson, Edward Esboldt, and Lester Nelson are each at least 56 years old and worked for defendant Jewel Food Stores, Inc., as a store director in one of defendant's 185 grocery stores.[1] [21] ¶¶ 4-10, 17, 20, 23, 26, 29, 32, 35, 38.[2] Most of defendant's stores employed two store directors: one to manage operations related to the store's food products and one to manage operations related to the store's drug products. [21] ¶¶ 41, 44. Plaintiffs Cesario, Cieslak, Anderson, Nelson, and Esboldt oversaw food-product operations in their respective stores, while plaintiffs LaRocco and Lee managed their stores' drug-product operations. [21] ¶ 45.

         In April 2011, defendant consolidated the management duties for its stores and made one store director at each store responsible for both food- and drug-product operations. [21] ¶ 46. Defendant offered severance packages to plaintiffs and other store directors in exchange for their resignation, but plaintiffs refused. [21] ¶ 43. Defendant then transferred each plaintiff to an underperforming store to assume his new responsibilities as the sole store director at that store. [21] ¶ 53. That meant that LaRocco and Lee, who were experienced in managing drug-product operations at their old stores, had to become proficient at managing food-product operations. [21] ¶ 47. And the other plaintiffs had to make the reverse transition. [21] ¶ 48. Defendant sent all store directors training materials, but did not provide individual training sessions. [21] ¶ 142. Plaintiffs claim that the performance standards that defendant then expected its store directors to meet were unreasonably high in light of the amount of training defendant provided. [21] ¶¶ 247-49. They also allege that defendant's training practices disproportionately affected older store directors like plaintiffs, because their extensive experience managing one area of the store made them less likely to understand that managing the other area of the store might require a different approach. [21] ¶¶ 248-49.

         In addition to being held to unrealistic standards, plaintiffs also suffered a series of abuses ranging from unfair criticism to excessive hours, leading them to file charges of discrimination with the EEOC and ultimately leave their stores. For example, Cesario consistently received high performance ratings until the end of 2014, when a new supervisor began to reprimand him for minor issues and assigned him large-scale projects without giving him the assistance given to younger store directors. [21] ¶¶ 68, 70-73, 85. The stress he experienced led to an accident, and he went on medical leave. [21] ¶ 74. After he returned, he continued to receive criticism for trivial issues. [21] ¶¶ 77, 78. His requests for a transfer were denied, and in April 2015, he went on medical leave again due to stress. [21] ¶¶ 80, 82. He filed EEOC charges of discrimination at the end of the year. [21] ¶ 18.

         Cieslak was transferred to an underperforming store in April 2011, and like Cesario, he received reprimands for minor issues in his store that did not cause concern in stores with younger store directors. [21] ¶¶ 92, 95, 98. His supervisor also denied his requests to transfer to other stores while approving similar requests from younger store directors. [21] ¶ 103. In late 2014, Cieslak complained to human resources that his supervisor had been discriminating against him based on his age, and a few months later, he received his first of several negative performance reviews. [21] ¶¶ 105-06. In June 2015, Cieslak filed a charge of discrimination with the EEOC, after which he was transferred to a smaller store. [21] ¶¶ 109-110. In December 2015, he filed an amended charge of discrimination with the EEOC and then went on medical leave. [21] ¶¶ 20, 111.

         Between April 2011 and January 2013, LaRocco performed well in his new role, receiving the praise of his supervisor. [21] ¶¶ 119-21. But defendant then transferred him to an underperforming store under a new supervisor, and in June 2014, that supervisor began criticizing him for trivial issues and giving him negative performance reviews. [21] ¶¶ 122-23, 129. The following year, LaRocco complained about his supervisor to human resources and filed a charge with the EEOC alleging age discrimination, after which defendant terminated his employment. [21] ¶¶ 132-35.

         Lee found himself in an underperforming store in April 2011 and, after improving that store's earnings, was transferred to a different store. [21] ¶¶ 145-46. After revitalizing that store, defendant transferred him to a third failing store in February 2014. [21] ¶¶ 147-49. Lee went on a medical leave of absence in July 2014, and when he returned a month later with a 40-hour-workweek restriction, his new supervisors began treating him worse than they did younger store directors. [21] ¶¶ 153-56. Five days after Lee's return, one supervisor told him it would be difficult to perform adequately while complying with his doctor's recommended 40hour restriction, and the supervisor pressured him into deciding on the spot to either try to meet his goals or quit. [21] ¶¶ 157-58. On several occasions after that, the supervisor asked Lee to stay late in order to criticize his performance, and Lee received his first negative review in August. [21] ¶¶ 160-61. In January 2015, Lee complained about his supervisors' harassing behavior, and by March, he found his working conditions so intolerable that he left the company. [21] ¶¶ 166-68. He filed an EEOC charge of discrimination in July and an amended charge in December. [21] ¶ 27.

         Defendant transferred Anderson to an underperforming store in April 2011, where he, too, received positive performance reviews. [21] ¶¶ 173-76. Five years later, he received his first negative review, after which a new supervisor began constantly criticizing his performance, setting unrealistic goals for the store, and suggesting that Anderson retire. [21] ¶¶ 183-89. Because defendant kept Anderson's store understaffed relative to other stores, Anderson ended up working more than 80 hours a week trying to meet his supervisor's expectations. [21] ¶¶ 188-89. Finding his working conditions unbearable, he left the company in November 2016 and filed an EEOC charge by the following March. [21] ¶¶ 30, 191.

         Nelson enjoyed success as a store director for many years. [21] ¶¶ 219-23. But in April 2011, he was transferred to a new store and began receiving criticism for minor issues that escaped notice in stores with younger store directors. [21] ¶¶ 224-26. In November 2016, a supervisor walked through the store with Nelson, pointing out areas that she wanted changed. [21] ¶ 229. Nelson felt sick, visited the store pharmacy, and learned that his blood pressure was spiking. [21] ¶ 229. He asked for leave to go see a doctor, but his supervisor insisted that he sit ...

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