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Partipilo v. Jewel Food Store, Inc.

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

December 4, 2017

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

          MEMORANDUM OPINION AND ORDER

          Honorable Thomas M. Durkin United States District Judge

         Partipilo brought this case after receiving a right to sue letter from the EEOC based on the 2013 conduct of her employer, Jewel, and two supervisors, alleging age discrimination, sex discrimination, retaliation, sexual harassment and hostile work environment, under Title VII, and assault, battery, and intentional infliction of emotional distress under state law. Several months after filing this case, Partipilo allegedly suffered wrongs at the hands of two other Jewel employees-an assault by defendant Maisonet in July 2016, who allegedly made crude sexual comments to her, and a battery by defendant Lazzaro in August 2016, who allegedly “punched her in the groin area, legs, and stomach.” Based on these new allegations, Partipilo amended her complaint on October 25, 2016, to include state law tort claims against Jewel, Maisonet, and Lazzaro. See R. 38. Partipilo also initiated a new charge with the EEOC on January 3, 2017 alleging hostile work environment claims against Jewel based on Maisonet's and Lazzaro's conduct. See R. 111 at ¶ 114.[1]

         Jewel and Lazzaro moved to dismiss the assault, battery, and intentional infliction of emotional distress claims against them. R. 60.[2] In an opinion dated April 27, 2017, the Court dismissed the assault, battery, and intentional infliction of emotional distress claims against Jewel, but allowed Partipilo to proceed with her assault claim against Maisonet and the battery claim against Lazzaro. R. 75.[3]Although Jewel argued that the Court lacked supplemental jurisdiction over the battery claim against Lazzaro (citing case law holding that the “mere fact that claims arise from the same employment relationship is insufficient to warrant the exercise of supplemental jurisdiction, ” R. 61 at 14), the Court nonetheless reasoned that “[i]t may be that the alleged acts from 2013 and 2016 can combine to form a hostile work environment under Title VII, ” and that this could form an adequate basis for supplemental jurisdiction over the battery claim against Lazzaro and the assault claim against Maisonet. R. 75 at 16.

         On May 11, 2017, Jewel and Lazzaro moved to reconsider the Court's ruling on the supplemental jurisdiction question. R. 78. Before the Court could address that motion, Partipilo replaced her counsel on June 27, 2017. R. 93; R. 95. Meanwhile, on June 26, 2017, the EEOC issued a right to sue letter against Jewel based on Maisonet's and Lazzaro's alleged conduct in 2016. See R. 111 ¶ 2. On September 19, 2017, nearly three months later, but within the 90 day statute of limitations for acting on an EEOC right to sue letter, Partipilo (through her new counsel) sought leave to file a third amended complaint that included Title VII claims based on Maisonet's and Lazzaro's conduct in 2016, which the Court granted. R. 107. Partipilo filed her third amended complaint on September 22, 2017. R. 111.

         In light of the third amended complaint, the Court denied Jewel and Lazarro's motion to reconsider as moot, and ordered new briefing on a refiled motion. See R. 107; R. 115. In their renewed motion, Jewel and Lazzaro argue that Partipilo should not have been granted leave to file the third amended complaint, and that the new allegations regarding the 2016 conduct should be stricken, because (1) “Plaintiff purportedly brings her Third Amended Complaint in an effort to assert one, continuing hostile work environment claim against Jewel from 2013 through 2016, ” but “[s]uch an amendment is futile, ” R. 117 at 3; (2) “Plaintiff unreasonably delayed in bringing her 2016 Title VII claims into the instant lawsuit, ” id. at 7; and (3) Jewel will be prejudiced by additional discovery and by jury confusion if the 2013 and 2016 facts are presented to the same jury, id. at 10-11. See Campania Mgmt. Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 849 (7th Cir. 2002) (“[C]ourts in their sound discretion may deny a proposed amendment if the moving party has unduly delayed in filing the motion, if the opposing party would suffer undue prejudice, or if the pleading is futile.”). In sum, Jewel and Lazarro argue that Partipilo should not be permitted, or has no basis upon which, to bring federal Title VII claims in this case based on the 2016 conduct of Maisonet and Lazzaro. And absent such an ability to state federal claims based on the 2016 conduct, her state law tort claims based on the 2016 conduct should be dismissed for lack of supplemental jurisdiction under 28 U.S.C. § 1367(a) (“the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy”).[4]

         A. Futility

         Jewel argues that Partipilo's amendment is futile because she has not alleged a continuing hostile work environment from 2013 through 2016 that can serve as a basis to exercise supplemental jurisdiction over the 2016 assault and battery claims. The Court agrees that Partipilo has not plausibly alleged a single hostile work environment continuing from 2013 through 2016. The harassment allegedly began in March 2013. Once Jewel transferred Partipilo's supervisor in May 2013, Partipilo fails to allege any further harassment until July 2016. Thus, there was at least a three-year period without harassment. The Seventh Circuit has held that this length of time between incidents of harassment is insufficient to establish an ongoing hostile work environment. See Lucas v. Chi. Trans. Auth., 367 F.3d 714, 727 (7th Cir. 2004) (three-year gap); Bass v. Joliet Public School Dist. No. 86, 2013 WL 1181497, at *6 (N.D. Ill. Mar. 20, 2013) (two-year gap).

         The parties address the question of whether Partipilo has alleged a hostile work environment stretching from 2013 through 2016 because the Court suggested in its April 27 opinion that such a claim was a possible basis for the Court to exercise supplemental jurisdiction over the 2016 assault and battery claims. But after the Court's April 27 ruling, Partipilo amended her complaint to include freestanding Title VII claims based on Maisonet's and Lazzaro's conduct in 2016 (in other words, federal claims not associated with the 2013 conduct). If those allegations state valid federal claims based on the 2016 conduct alone, then they will be a sufficient basis to exercise supplemental jurisdiction over the state law claims that are also based on that conduct, even absent a plausible allegation of a hostile work environment stretching from 2013 through 2016. Thus, Partipilo's amendment is not futile.

         B. Delay

         Jewel also contends that the Court should reconsider its grant of leave to amend because Partipilo's decisions (1) to wait five months to bring charges to the EEOC; (2) to allow her charge “to languish in the EEOC for five months”; and (3) to wait three months to amend once she received her right to sue letter, taken together constitute undue delay. R. 117 at 7. Jewel is correct that a mechanism exists for Partipilo to prod the EEOC to move faster on her charge. See Ortega v. Chi. Bd. of Ed., 2017 WL 5593350, at *15 (N.D. Ill. Nov. 21, 2017). It also may be that Partipilo could have acted faster to first bring a charge with the EEOC, and then to amend once she received a right to sue letter. But the Court cannot say that the delays at issue here are “undue.” Jewel has not cited any authority finding undue delay in analogous circumstances.

         Moreover, even if Partipilo could have acted faster to bring federal claims based on the 2016 conduct, Jewel has long had notice of Partipilo's intention to bring claims based on the 2016 conduct, and to bring federal claims specifically. Partipilo amended her complaint in October 2016 to include state claims based on that conduct. And as of January 2017 when Partipilo filed her EEOC charge, Jewel knew that she was pursuing federal claims. This notice undermines Jewel's argument that the delay here was prejudicial.

         Additionally, the Court is particularly reluctant to force Partipilo to refile her 2016 claims in a separate case where the great majority of the delay occurred while Partipilo was represented by her prior counsel, who the Court already has sanctioned for his conduct in this case. The Court is reluctant to force Partipilo to pay a second fee to refile what are otherwise timely claims, that will likely be reassigned to this Court as related to this case even if they were refiled separately.

         C. Prejudice

         Jewel also argues that it will be prejudiced by extending discovery, and at trial if the same jury is allowed to hear about both the 2013 and 2016 incidents. But discovery has not closed, and the Court and the parties at the last status hearing anticipated setting a new date for close of discovery in light of this ruling. Jewel has not taken Partipilo's deposition yet, and Jewel has not argued that it would have to re-depose any witness if the 2016 claims remain in the case. Additionally, any actual or anticipated prejudice at trial can be avoided ...


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