Cesario et al v. Jewel Food Stores Inc et al
Filing
34
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 11/7/2017: Defendant's motion to dismiss, 24 , is granted. Counts I, III, IV, VII, X, XVI, XIX, XXII, and XXV are dismissed without prejudice. A status hearing is set for November 28, 2017 at 9:30 a.m. [For further detail see attached order.] Notices mailed. (psm, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY CESARIO, STEVE CIESLAK,
GREGORY LAROCCO, JAMES LEE, FRANK
ANDERSON, EDWARD ESBOLDT, and
LESTER NELSON,
Plaintiffs,
No. 17 CV 319
v.
Judge Manish S. Shah
JEWEL FOOD STORES, INC.,
NEW ALBERTSON’S INC., and
JEWEL OSCO SOUTHWEST LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
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
The complaint names as defendants three entities: Jewel Food Stores, Inc., New
Albertson’s Inc., and Jewel Osco Southwest LLC. Defendant Jewel Food Stores, Inc., filed
the present motion, claiming that it alone was plaintiffs’ employer, and that the other two
defendants are not properly named in this suit. Plaintiffs do not address this point, and it
ultimately has no bearing on whether plaintiffs’ claims may proceed. Thus, I refer to
plaintiffs’ employer as “defendant.”
1
Bracketed numbers refer to entries on the district court docket. The operative complaint is
[21].
2
2
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 drugproduct 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
3
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
4
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.
5
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 down and
listen to the rest of her complaints. [21] ¶ 229. He left the store in February 2017
and filed an EEOC charge in March. [21] ¶¶ 36, 237.
Like the other plaintiffs, Esboldt earned a good reputation for turning around
underperforming stores. [21] ¶¶ 196–99. But in 2010, Esboldt’s supervisor told him
to fire two assistant store directors. [21] ¶ 202. After Esboldt refused to fire those
workers, he received a slightly lower performance rating than he typically received.
6
[21] ¶¶ 201–03. His supervisor again suggested to Esboldt that he fire the two
assistant store directors, and told him to micromanage them and document their
mistakes. [21] ¶¶ 204–05. Again, Esboldt refused, and he later received his first
negative performance review and a threat of termination. [21] ¶ 206. In 2016,
Esboldt requested a transfer to one of the stores closer to his home and was denied;
younger store directors were allowed to transfer to those stores instead. [21] ¶ 210.
Also that year, an inventory audit revealed mistakes in Esboldt’s store, and
defendant unfairly blamed Esboldt. [21] ¶ 211. In June, Esboldt could not continue
his employment under the pressure and stress of potential termination, so he left.
[21] ¶ 216. He, too, filed an EEOC charge in March 2017. [21] ¶ 33.
Plaintiffs jointly bring a claim under the Age Discrimination in Employment
Act based on a disparate-impact theory. Each plaintiff brings an individual claim
for the intentional infliction of emotional distress. And Cesario brings a retaliation
claim under the Americans with Disabilities Act. Plaintiffs also bring a variety of
individual claims under the federal statutes, including disparate-treatment and
retaliation claims, but those claims are not at issue in this motion.
III.
Analysis
Defendant moves to dismiss the disparate-impact claim brought by all
plaintiffs (Count I), each plaintiff’s state-law tort claim for the intentional infliction
of emotional distress (Counts IV, VII, X, XVI, XIX, XXII, and XXV), and the
retaliation claim brought by Cesario (Count III).
7
A.
Disparate Impact
In Count I of the complaint, plaintiffs invoke the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq., and seek relief under a disparateimpact theory. To state such a claim, plaintiffs must allege that a “specific, facially
neutral employment practice caused a significantly disproportionate adverse impact
based on age.” Carson v. Lake Cty., Indiana, 865 F.3d 526, 536 (7th Cir. 2017)
(quoting Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 68 (3d Cir. 2017))
(emphasis omitted). “[I]t is not enough to simply allege that there is a disparate
impact on workers, or point to a generalized policy that leads to such an impact.”
Smith v. City of Jackson, 544 U.S. 228, 241 (2005). Defendant argues that Count I
fails to state a claim because it does not adequately allege that an employment
practice resulted in a statistically significant disparate impact upon older
employees.
Plaintiffs argue that the practice that gave rise to their claim was the
minimal training given to all store directors upon assigning them new
responsibilities, which resulted in their inability to meet the performance goals set
by defendant. Plaintiffs say their claim is based on the following allegations: they
were all at least 56 years old and had been consistently meeting their performance
goals for much of their careers; their employer instituted a policy change in 2011 to
add to each store director’s responsibilities the management of a different group of
products, but failed to provide plaintiffs with sufficient training to perform their
new duties; plaintiffs started receiving lower performance reviews and criticism,
8
and younger store directors did not receive such criticism; and after a few years,
plaintiffs were either fired, constructively discharged, or went on disability or
medical leave. The parties do not discuss the causal link between the minimal
training and the lower performance reviews given to plaintiffs, but the complaint
alleges that plaintiffs’ experience with one product line blinded them to the
responsibilities and requirements unique to the other product line, which made
additional training necessary.
While the complaint does identify a facially neutral practice, it does not
permit an inference that that practice resulted in a disparity between older and
younger store directors. Defendant operated 185 stores and presumably employed
at least 185 store directors to manage those stores as of April 2011. The complaint
suggests that plaintiffs themselves could have benefitted from more training when
they took on additional responsibilities that April, but it does not indicate the
relative ages of the other store directors who were exposed to this practice, or
whether the practice adversely affected anyone other than plaintiffs. Plaintiffs
suggest that their own experiences are enough to show that the training protocol
disproportionately affected members of their age group, but it cannot be inferred
from the complaint that plaintiffs comprised the entire population, or even a
substantial portion, of older store directors. As explained in Adams v. City of
Indianapolis, 742 F.3d 720 (7th Cir. 2014), “[d]isparate-impact plaintiffs are
permitted to rely on a variety of statistical methods and comparisons to support
their claims,” and “[a]t the pleading stage, some basic allegations of this sort will
9
suffice.” Id. at 733. Here, however, the complaint does not allege any facts to
support the claim that older employees suffered a disproportionate impact. The
complaint does not allege that older people lacked the capacity to learn new skills
with the training materials. Plaintiffs argue that the complaint provides defendant
with fair notice of the disparate-impact claim, but it “stops short of the line between
possibility and plausibility of entitlement to relief.” Id. at 728 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007)). For that reason, Count I is dismissed.
Defendant also argues that plaintiffs cannot bring this claim because it is
outside the scope of the charges of discrimination that plaintiffs filed with the
EEOC. As a general rule, a plaintiff may not bring a claim under the Act that was
not alleged in his underlying EEOC charge. Miller v. Am. Airlines, Inc., 525 F.3d
520, 525 (7th Cir. 2008) (citing Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th
Cir. 1994)). “This requirement is to ensure that the employer has notice about the
particular challenged conduct and provides an opportunity for settlement of the
dispute.” Id. But like all general rules, this one has exceptions. A plaintiff may
proceed on a claim not explicitly asserted in an EEOC charge if it is “reasonably
related” to the charge, and “if the claim in the complaint can reasonably be expected
to grow out of an investigation of the allegations in the charge.” Sauzek v. Exxon
Coal USA, Inc., 202 F.3d 913, 920 (7th Cir. 2000) (quoting Cheek, 31 F.3d at 500).
Plaintiffs argue that the disparate-impact claim is reasonably related to the
EEOC charges, and that each charge contains enough factual allegations from
which the claim may be made. Cesario’s charge states that he was discriminated
10
against through “unwarranted negative performance rating(s) and denial of
promotion related to said performance rating(s), increased responsibilities without
increased pay and/or increased support staff, failure to train and/or inadequate
training, denial of transfer to another store, and comments from my supervisors
related to my age.” [30-1] at 2.3 The charges filed by the other plaintiffs contain
similar allegations. See [30-2]–[30-7]. Defendant argues that the charges describe
intentional discrimination, which fits more naturally a disparate-treatment claim
than a disparate-impact claim.4
Plaintiffs primarily rely on Adams, a Title VII case that also involved both
disparate-treatment and disparate-impact claims. In that case, the plaintiffs alleged
in both their EEOC charges and their complaint that the defendant employer’s
promotion process, which took into account subjective factors, resulted in a
disproportionately adverse impact on a protected class. Adams, 742 F.3d at 731. The
court explained that, in identifying an employment practice that resulted in a
disparity, even though the practice was subjective and not facially neutral, the
charges made clear that the plaintiffs were complaining about both disparate
Defendant filed with the motion the charges of discrimination that plaintiffs filed with the
EEOC. See [25-1]. Plaintiffs acknowledge that these documents are referred to in the
complaint and central to its claims, and plaintiffs attach the same documents to their
response to the motion. See [30-1]–[30-7].
3
A claim of disparate treatment under the Act turns on the employer’s intent, and the
“relevant question is whether the employer’s adverse employment decision was motivated
by the plaintiff’s age.” Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996) (citing
Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 545 (7th Cir. 1988)). A disparate-impact
claim is not concerned with the employer’s intent, and instead focuses on whether “a
specified employment practice of the defendant has a disproportionately negative effect on
members of the plaintiff’s protected class.” Id. (citing Vitug v. Multistate Tax Comm’n, 88
F.3d 506, 513 (7th Cir. 1996)).
4
11
treatment and disparate impact, and that allegations of intentional discrimination
did not preclude a claim of disparate impact. Id. at 731–33.
Adams is not applicable here because, as plaintiffs concede, each charge
describes discriminatory conduct directed at a single individual, and the charges do
not suggest the existence of a company-wide training policy, or that such a policy
would have a discriminatory impact on older employees. Plaintiffs state that they
were unaware of whether the complained-of conduct resulted from a policy or not, or
whether any other employees were affected. But they cite no authority to suggest
that their lack of knowledge excuses their obligation to give the EEOC and the
defendant an opportunity to explore resolution of such a claim. Each charge alleges
intentional discrimination against each plaintiff in a variety of forms, but does not
identify a policy or practice that could lead to a disparate-impact claim. The claim is
therefore not reasonably related to the charges. See Noreuil v. Peabody Coal Co., 96
F.3d 254, 259 (7th Cir. 1996) (explaining that a disparate-impact claim is not
reasonably related to a charge of retaliation where the charge did not describe any
discriminatory policies). For the independent reason that plaintiffs failed to exhaust
administrative remedies for their disparate-impact claim, the claim is dismissed.5
Defendant also argues that the claim is time-barred, because plaintiffs filed their EEOC
charges too late. “[A]n employee may sue under the ADEA or ADA only if he files a charge
of discrimination with the EEOC within 300 days of the alleged ‘unlawful employment
practice.’” Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 637 (7th Cir. 2004).
Defendant argues that the limitations period for the disparate-impact claim began to run in
April 2011, when plaintiffs were assigned new responsibilities but not given the necessary
training. Plaintiffs filed their EEOC charges years later, which defendant believes was too
late. Plaintiffs argue that, because they were never provided adequate training, the
unlawful employment practice was ongoing, and that as a result, the limitations period
began to run upon the date of their termination. “Dismissing a complaint as untimely at the
5
12
B.
Intentional Infliction of Emotional Distress
Counts IV, VII, X, XVI, XIX, XXII, and XXV allege intentional infliction of
emotional distress by Cesario, Cieslak, LaRocco, Lee, Anderson, Esboldt, and
Nelson, respectively. As a threshold matter, defendant argues that the claim is
preempted by the Illinois Human Rights Act, which provides that “[e]xcept as
otherwise provided by law, no court of this state shall have jurisdiction over the
subject of an alleged civil rights violation other than as set forth in this Act.” 775
ILCS 5/8-111(D). The Act defines “civil rights violation” to include employment
discrimination based on a person’s age. Id. 5/1-103(Q); Id. 5/2-102(A). But if the
alleged conduct “would be actionable even aside from its character as a civil rights
violation because the [Act] did not ‘furnish[ ] the legal duty that the defendant was
alleged to have breached,’ the [Act] does not preempt a state law claim seeking
recovery for it.” Krocka v. City of Chicago, 203 F.3d 507, 516–17 (7th Cir. 2000)
(quoting Maksimovic v. Tsogalis, 177 Ill.2d 511, 517 (1997)). In other words, “the
concrete question to ask is whether the plaintiff states a valid common-law claim
without needing to rely on the rights and duties created by the Human Rights Act.”
Richards v. U.S. Steel, 869 F.3d 557, 564 (7th Cir. 2017).
Defendant argues that plaintiffs’ claims are all based on the same allegations
underpinning their discrimination claims. The complaint does refer to the same
pleading stage is an unusual step, since a complaint need not anticipate and overcome
affirmative defenses, such as the statute of limitations.” Cancer Found., Inc. v. Cerberus
Capital Mgmt., 559 F.3d 671, 674–75 (7th Cir. 2009). Dismissal is appropriate when the
plaintiff pleads himself out of court by alleging facts that conclusively establish that the
defense applies. Id. On the face of the complaint, it is not obvious when the unlawful
employment practice at the heart of plaintiffs’ claim occurred. Thus, timeliness is not a
basis for dismissal.
13
allegations in both the discrimination claims and the individual tort claims. But
plaintiffs argue that the complaint also includes allegations that can independently
support a claim for the intentional infliction of emotional distress even without
incorporating the discriminatory nature of defendant’s conduct. To the extent that
plaintiffs’ tort claims rely on the complaint’s allegations of employment
discrimination based on age, they are preempted and dismissed.6 To the extent the
claims are based on other allegations, they are not preempted.
Even taken as true, however, the allegations in the complaint do not support
a claim of intentional infliction of emotional distress. To state such a claim, a
plaintiff must allege that “(1) the defendant’s conduct was extreme and outrageous,
(2) the defendant intended to inflict severe emotional distress or knew that there
was at least a high probability that his conduct would inflict severe emotional
distress, and (3) the defendant’s conduct did cause severe emotional distress.”
Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006) (quoting Van Stan
v. Fancy Colours & Co., 125 F.3d 563, 567 (7th Cir. 1997)). The parties dispute only
the first factor. Conduct is extreme and outrageous if it is “so extreme as to go
beyond all possible bounds of decency, and to be regarded as intolerable in a
civilized community.” Hukic v. Aurora Loan Servs., 588 F.3d 420, 438 (7th Cir.
2009) (quoting Kolegas v. Heftel Broad. Corp., 154 Ill.2d 1, 21 (1992)). But “mere
Although defendant moves for dismissal of this claim under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject-matter jurisdiction, dismissal under Rule 12(b)(6) is
more appropriate. See, e.g., Krocka v. City of Chicago, 203 F.3d 507, 516 (7th Cir. 2000)
(affirming dismissal of a claim on preemption grounds under Federal Rule of Civil
Procedure 12(b)(6)).
6
14
insults, indignities, threats, annoyances, petty oppressions, or other trivialities do
not amount to extreme and outrageous conduct, nor does conduct characterized by
malice or a degree of aggravation which would entitle the plaintiff to punitive
damages for another tort.” Richards, 869 F.3d at 566–67 (internal quotation marks
omitted).
In the employment context, Illinois courts are hesitant to conclude that
conduct is extreme and outrageous unless an “employer clearly abuses the power it
holds over an employee in a manner far more severe than the typical disagreements
or job-related stress caused by the average work environment.” Richards, 869 F.3d
at 567 (quoting Naeem, 444 F.3d at 605). The fear is that, “if everyday job stresses
resulting from discipline, personality conflicts, job transfers or even terminations
could give rise to a cause of action for intentional infliction of emotional distress,
nearly every employee would have a cause of action.” Naeem, 444 F.3d at 605
(quoting Graham v. Commonwealth Edison Co., 318 Ill.App.3d 736, 746 (1st Dist.
2000)).
Plaintiffs argue that they each alleged that their supervisors gave them
unreasonable amounts of work and criticized their performance. They also argue
that the complaint details particularly egregious behavior with respect to the claims
of Lee, Esboldt, and Nelson. For example, Lee’s supervisor unfairly blamed him for
the unsatisfactory condition of his store five days after Lee had returned from
medical leave. The supervisor also told Lee that he would have a difficult time
performing adequately while complying with a medically-advised 40-hour workweek
15
restriction, suggested that Lee quit or retire, and told Lee to call his wife and
discuss his decision to stay. Esboldt’s supervisor instructed him to fire two of his
assistant store directors, even though Esboldt valued their services. When Esboldt
refused, the supervisor threatened to fire him and then lowered his performance
rating. The supervisor also pressured Esboldt to micromanage the assistant
managers until they quit. Finally, plaintiffs explain that Nelson’s supervisor
mistreated him while conducting an inspection of his store in November 2016. On
that occasion, they walked through the store together and she identified changes
she wanted made. He felt lightheaded, and he told his supervisor that his blood
pressure was high and that he needed to see a doctor. Instead of permitting him to
leave immediately, she made him sit down until she was finished with her critique.
Plaintiffs compare their experiences to those in Naeem. There, the employer’s
actions against the plaintiff included:
forcing [plaintiff] to climb up an unstable metal stairway to hook up
computer equipment during her pregnancy; sabotaging [her] computer
to deny her access and alter her files; publicly criticizing [her] work
during meetings with other supervisors; moving her office and her
transportation files, causing her to be unable to locate necessary
paperwork; and increasing the amount of work due . . . knowing that
[she]
would
not
be
able
to
meet
the
deadlines.
Naeem, 444 F.3d at 606. The allegations in the complaint are not akin to the
deplorable behavior described in Naeem. Private criticism of one’s performance,
even if unearned, does not rise to the level necessary to support an intentional
infliction of emotional distress claim. And worse conduct on the part of employers
has been held to be insufficiently extreme and outrageous. See, e.g., Harriston v.
16
Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (holding that conduct was
not extreme and outrageous where plaintiff was prohibited from supervising white
employees, unfairly criticized, excluded from office activities and decisions, forced
out of a management position and denied a promised promotion, and had her calls
monitored and her car vandalized); Tabora v. Gottlieb Mem’l Hosp., 279 Ill.App.3d
108, 120 (1st Dist. 1996) (affirming dismissal where plaintiff doctor alleged that the
defendants engaged in a five-year campaign of harassment and intimidation by
falsely claiming that he was incompetent, revoking his privileges, and constantly
berating him in front of hospital staff). Plaintiffs found their supervisors’ behavior
offensive, and some of the allegations of defendant’s treatment of plaintiffs are
troubling, but they do not meet the level of objective outrageousness necessary to
state a claim for the intentional infliction of emotional distress.7 The claims are
dismissed.
C.
Retaliation
In Count III, Cesario alleges that defendant retaliated against him in
violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Defendant
argues that Count III should be dismissed and, rather than respond to defendant’s
arguments, plaintiffs request leave to replead the claim. Because plaintiffs
effectively concede that Count III fails to state a claim, the claim is dismissed.
Nelson’s allegations come closer to stating a claim. “Behavior which (though rude,
abrasive or extremely inconsiderate) may not otherwise be actionable may be deemed
outrageous if the defendant knows that the plaintiff is peculiarly susceptible to emotional
distress.” Pilotto v. Urban Outfitters W., L.L.C., 2017 IL App (1st) 160844, ¶ 17 (quoting
McGrath v. Fahey, 126 Ill.2d 78, 89–90 (1988)). Nelson’s reviewer knew his blood pressure
was up, yet she did not allow him to seek immediate medical attention. As currently
pleaded, however, this was an isolated incident of limited duration.
7
17
Plaintiffs’ request for leave to replead the claim is granted, as is their request
for any dismissal to be without prejudice. Defendant requests that the claims be
dismissed with prejudice, noting that plaintiffs already amended their complaint
once before. See [18]. But the amended complaint was filed before defendant moved
to dismiss, and plaintiffs should have at least one more opportunity to amend. See
Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008) (“District courts routinely do not
terminate a case at the same time that they grant a defendant’s motion to dismiss;
rather, they generally dismiss the plaintiff’s complaint without prejudice and give
the plaintiff at least one opportunity to amend her complaint.”). Also, where the
basis for dismissal is a failure to exhaust administrative remedies, as is the case
with the disparate-impact claim, such a dismissal should be without prejudice. See
Greene v. Meese, 875 F.2d 639, 643 (7th Cir. 1989) (“[T]he proper remedy for a
failure to exhaust administrative remedies is to dismiss the suit without prejudice,
thereby leaving the plaintiff free to refile his suit when and if he exhausts all of his
administrative remedies or drops the unexhausted claims.”).
IV.
Conclusion
Defendant’s motion to dismiss, [24], is granted. Counts I, III, IV, VII, X, XVI,
XIX, XXII, and XXV are dismissed without prejudice. A status hearing is set for
November 28, 2017 at 9:30 a.m.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: November 7, 2017
18
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