Finnane v. Pentel of America, Ltd.

• Decision Date: 22 March 1999
• Docket Number: No. 98 C 5187.,98 C 5187.
• Parties: Susan FINNANE and James Finnane, Plaintiffs, v. PENTEL OF AMERICA, LTD., an Illinois Corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

43 F.Supp.2d 891

Susan FINNANE and James Finnane, Plaintiffs, v. PENTEL OF AMERICA, LTD., an Illinois Corporation, Defendant.

No. 98 C 5187.

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

March 22, 1999.

Jennifer Ann Nielsen, Bedrava, Lyman & Van Epps, Oak Brook, IL, Steven M. Ruffalo, Donald Naylor Wilson, Jason Russell Surber, Howard Scott Dakoff, Fuchs & Roselli, Ltd, Chicago, IL, for plaintiffs.

James S. Barber, Anne Laura Loevy, Michelle K.B. Garcia, Clausen Miller P.C., Chicago, IL, for defendant.

OPINION and ORDER

NORGLE, District Judge.

Before the court is Defendant Pentel of America, Ltd.'s ("Pentel") Motion to Dismiss and to Strike portions of Count I of Plaintiffs' Amended Complaint and to Dismiss Counts II-V. For the reasons stated below, the motion is granted in part and denied in part.

I. ALLEGED FACTS¹

In 1991, Pentel, an office supply distribution company with its principal place of business in Elk Grove Village, Illinois, hired Plaintiff Susan Finnane ("Finnane") as a consumer representative. Four years later in 1995, Pentel promoted Finnane to the position of sales representative. As part of her duties, in September 1995, Finnane was required to attend Pentel's National Sales Meeting, which Pentel held over several days at a hotel in Newport Beach, California. On one evening during the conference, Paul Ventimiglia ("Ventimiglia"), Pentel's National Sales Manager, summoned Finnane to his hotel room to discuss business. After Finnane entered, Ventimiglia asked her to sit on his bed. He then sat next to her and told her that during the previous night he envisioned her "in a black bra and underwear" and told Finnane that he had "sat masturbating thinking of [her]." (Amend.Compl., at ¶ 16.) Ventimiglia proceeded to grope Finnane during which time he exposed his penis. He then began masturbating and "requested and pleaded with [her] to have sexual intercourse with him." (Id. at ¶ 17.) "[Finnane] immediately pushed Ventimiglia away, requesting that he stop his un-welcome behavior and advances" and fled from the room. (Id. at ¶ 18.)

The following evening Finnane met with a supervisor, Tim Fallihee ("Fallihee"), Pentel's Director of Sales. During the discussion, he informed her that he knew of the previous night's events and recommended that Finnane "keep her mouth shut." (Id. at ¶ 19.) Pentel took no steps to investigate the incident, and a month later, Ventimiglia contacted Finnane to apologize for his conduct.

In November 1995, Ventimiglia contacted Finnane again and informed her that he would be traveling to Illinois on business and that he wanted to meet with her to discuss business over dinner. Finnane agreed. After Ventimiglia's arrival, Finnane accompanied him on what he said would be a business dinner to an Italian restaurant. Ventimiglia, however, spent most of the time inquiring about Finnane's personal and family life. After dinner, Ventimiglia asked Finnane to escort him to his hotel room. She agreed to walk with him to the door. After entering an elevator in the hotel lobby, Ventimiglia forced himself upon Finnane. He groped and fondled her in the elevator and demanded that she submit to his sexual desires. That evening, Finnane submitted to "an unwelcome act of sexual intercourse." (Id. at ¶ 27.)

After this incident, Ventimiglia made repeated obscene phone calls to Finnane between November 1995 and July 1996. The repeated calls were attempts to engage in "phone sex" and would occur as often as four times per day. (Id. at ¶ 28.) During the calls, Ventimiglia would suggest, among other things, that he wanted to: engage Finnane in anal sex; watch Finnane engage in sexual relations with other women; and see and suck on her "big nipples." (Id.) Further, Ventimiglia wanted Finnane to describe the color of her underwear; and he described how he was masturbating while talking to her. (See id.) In May 1996, after Finnane rejected Ventimiglia's repeated attempts to engage in phone sex, he threatened her "with the loss of her job." (Id. at ¶ 29.) Again in June 1996, while at a trade show in Chicago, "Ventimiglia cornered [Finnane] and touched and groped her against her will, despite her insistence that he not touch her." (Id. at ¶ 30.)

The following month, after Finnane insisted that Ventimiglia cease his unwanted sexual advances, he cautioned her that if she disclosed his behavior she would be terminated as soon as she failed to reach her sales quota. A year later, in August 1997, Ventimiglia cornered Finnane during a national sales meeting in California and "felt and grabbed [her] buttocks." (Id. at ¶ 32.) When she attempted to push him away, Ventimiglia told her that if she told anyone about his conduct, she would not only lose her job, but he would also "kill her." (Id.)

Between the Fall of 1995 and March 1998, Finnane repeatedly informed her supervisors and other management personnel of Ventimiglia's conduct. In doing so, Finnane followed the procedures described in Pentel's Employee Handbook. However, despite her repeated complaints, Pentel did not take any action to investigate or reprimand Ventimiglia. For instance, Finnane informed her regional manager, Al Homesley ("Homesley"), of Ventimiglia's conduct and the effect it was having on her. Rather than investigate, Homesley recommended that she leave the company.

In October 1997, she was subjected to verbal ridicule by her new regional manager, Gary Poillucci ("Poillucci"), who commented in a joking manner before Finnane and her co-employees that she "[gave] Pentel a bad name." (Id. at ¶ 39.) Finnane, however, was among Pentel's top sales people and received achievement awards in prior years.

In December 1997, Poillucci also made unwelcome sexual advances upon Finnane and informed her that he had "envisioned doing this for the last year." (Id. at ¶ 40.) He also told her that he "didn't know whether [he] would rather go to dinner with [her] or take [her] to bed." (Id.) On January 13, 1998, Poillucci directed Finnane to meet him at a hotel room to discuss business. After she arrived, Poillucci proceeded to kiss and grope her. When she rebuffed these advances, Poillucci commented that he knew she had been the subject of Ventimiglia's advances and threats. He also stated that he often joked about the situation with Fallihee. Shortly thereafter, in May 1998, Pentel placed Finnane on a leave of absence and changed her employment status from active to inactive. As of the date this action was filed, Finnane remained on the leave of absence.

II. PROCEDURAL BACKGROUND

On May 18, 1998, Finnane filed a charge of discrimination against Pentel with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a "right to sue" letter on July 24, 1998, and Finnane filed this action on August 20, 1998. Finnane's Amended Complaint, filed on January 13, 1999, contains five Counts. Count I alleges Civil Rights violations under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, see 42 U.S.C. § 2000e et seq., based upon the conduct described above which took place between 1995 and 1998. Count II is a breach of contract claim which alleges that Pentel breached its agreement to promptly investigate reports of harassment and discipline offenders, as allegedly promised in its Employee Handbook. Count III alleges negligent supervision based upon Pentel's failure to adequately supervise Ventimiglia and Poillucci. Count IV alleges that Pentel was negligent in that it had a duty not to retain such employees. Count V is a loss of consortium action by Finnane's husband, James Finnane.

III. LEGAL STANDARD

In deciding a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court merely looks at the sufficiency of the complaint, see Autry v. Northwest Prem. Serv., Inc., 144 F.3d 1037, 1039 (7th Cir.1998); the court does not decide whether the plaintiff has a winning claim. See Herdrich v. Pegram, 154 F.3d 362, 369 (7th Cir.1998). The court will deny the motion unless "it is impossible [for the plaintiff] to prevail `under any set of facts that could be proved consistent with her allegations.'" Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)). The court "must look to see whether there is any possible interpretation of the complaint under which it can state a claim." Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir.1998). When reviewing the complaint, the court must accept all well-pleaded factual allegations in the complaint as true, and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. See Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 502 (7th Cir.1998).

IV. DISCUSSION

A. COUNT I — CIVIL RIGHTS

Count I of Finnane's Amended Complaint alleges sexual harassment in violation of Title VII. Pentel claims that a majority of the allegations of harassment are time-barred and thus should be dismissed and stricken. The court agrees.

Sexual harassment is a recognized subset of gender discrimination. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Title VII deems unwelcome sexual advances as unlawful sex discrimination because they create an offensive or hostile working environment. See Hartman v. Pena, 914 F.Supp. 225, 228 (N.D.Ill.1995). "`When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.'" Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, ___, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). With respect to harassment by a co-worker, an employer may be held responsible, but only if it knew or should have known...