MEMORANDUM OPINION AND ORDER
Plаintiffs Gayle Curcio, Penny Verest, Ellen Waltz, and Connie Weng bring this action against defendants Chinn Enterprises, Inc., d/b/a Bob Chinn’s Crab House (“Crab House”), and Bob Chinn (“Chinn”), alleging sex discrimination and retaliation in violation
BACKGROUND 1
All four plaintiffs are employed by defendants as waitpersons. 2 The Crab House is one of the largest independent restaurants in the United States, employing over 200 persons and generating revenues in 1993 of more than $18 million. Chinn is the president and controlling shareholder of the Crab House. At all times during plaintiffs’ employment, Chinn was head of management and had supervisory authority at the Crab House over all of the employees. According to plaintiffs, Chinn spoke for and was closely identified with the Crab House, often referring to it as “Bob’s World.”
Plaintiffs allege that throughout their employment, Chinn repeatedly engaged in sexually offensive behavior and; made lewd and sexually offensive remarks to and about plaintiffs, other female waitpersons, and female customers. Additionally, Chinn touched or threatened to touch plaintiffs in an offensive and unwelcome manner. He has referred to the plaintiffs and other female employees as “c — nts” and “c — suckers,” has made degrading and humiliating sexual innuendoes to plaintiffs, often in the presence of customеrs, and has made racial and religious slurs. Chinn has pulled the hands of female employees to his crotch in the presence of plaintiffs. Chinn has threatened plaintiffs and other employees with physical harm, such as stating that he would “punch in the face” anyone who littered in the parking lot. He has threatened the plaintiffs with various punishments, which plaintiffs allege were meted out arbitrarily in order to harass and intimidate employees.
Some of the specific incidents that plaintiffs allege include: Waltz observed Chinn being taken awаy from a table where he had crawled under to look up a woman’s skirt; Chinn asked Weng whether she wanted to go upstairs for a “quickie” and “maybe she wasn’t getting it at home”; Chinn has leaned his midsection against Weng’s back on a number of occasions and rubbed against her while she was working; Chinn has often told Waltz, who is the mother of seven, that she should keep her legs crossed and that he could show her how not to get pregnant; Chinn told Curcio on several occasions in front of customers and other employees that she should lose weight; Verеst encountered Chinn and two customers in a stairwell, and Chinn pulled at his crotch and said to her “this is what you really want”; Chinn has called the plaintiffs “stupid” and “f — ing stupid” in front of customers; Chinn told Curcio that her sister, who was very ill and awaiting a bone marrow transplant, was “the biggest f — ing c — t that worked hеre.”
Plaintiffs allege that the Crab House has no posted or written sexual harassment policy and the Crab House has never informed plaintiffs to be aware of any policy at the Crab House of prohibiting sexual harassment. No manager, supervisor, or agent of thе Crab House has taken any action to stop Chinn’s conduct.
Between November 1994 and January 1995, all of the plaintiffs filed charges of sexual harassment with the Equal Employment Opportunity Commission (“EEOC”) against both defendants.
3
Following notifica
Plaintiffs, upon receiving their Right to Sue notices from the EEOC, filed this four-count compliant: Count I alleges a violation of Title VII based upon sexual harassment; Count II alleges retaliation against three of the plаintiffs; and, Counts III and IV allege assault and battery and intentional infliction of emotional distress under Illinois law. Plaintiffs allege that they have suffered from anxiety, depression, sleeplessness, humiliation, and other mental and emotional injuries as a result of all of Chinn’s actions.
In resрonse, defendant Chinn has moved to dismiss Counts I and II, arguing that he is not liable either as an employer or individually under Title VII. Chinn argues that the court, after dismissing Counts I and II, should then decline supplemental jurisdiction of Counts III and IV. Both defendants have also moved to dismiss Count IV, arguing that plaintiff has nоt alleged sufficiently a claim for intentional infliction of emotional distress under Illinois law.
STANDARD OF REVIEW
In ruling on a motion to dismiss, the court must presume all of the well-pleaded allegations of the complaint to be true,
Miree v. DeKalb County Ga.,
ANALYSIS
I. Defendant Chinn
A. Liability of Defendant Chinn for Counts I and II
Chinn moves to dismiss Counts I and II arguing that he is not an “employer” as defined by Title VII and, therefore, he cannot be held individually liable. The Seventh Circuit has recently addressed the issue of individual liability under the provisions of the ADA, holding that those persons who do not otherwise meet the statutory definition of “employer” cannot be held individually liable.
EEOC v. AIC Security Investigations, Ltd.,
Plaintiffs, however, allege that Chinn constitutes an employer under Title VII because he is the “alter ego” of the corporation. As president, controlling shareholder, and head of management with supervisory authority of the Crab House, plaintiffs allege that Chinn was identical to the Crab House. Although the Seventh Circuit’s recent holding does not expressly address this type of “alter ego” argument, the court commented on the validity of such an argument in a footnote, indicating that it wоuld be inclined to reject individ
In Fabiszak, this court held that a supervisor may be liable as an “employer” under Title VII when the supervisor’s role is more than that of a mere supervisor but is actually identical to that of the employer. Id. There, the supervisor controlled the internal operations of the office and was responsible for appointing employees and for the conduct of his employees. Similarly in the instant case, plaintiffs allege that Chinn was more than a mere supervisor, but was in all respects the actual employer because he was the controlling shareholder and the main decisionmaker, and in effect left no avenue for the employees to object to his misconduct. Taking plaintiffs’ allegations as true for purposes of a Rule 12(b)(6) motion, Chinn can be viewed under such circumstances as plaintiffs’ employer for the purposes of Title VII. Accordingly, the court denies Chinn’s motion to dismiss Counts I and II.
B. Supplemental Jurisdiction of Counts III and IV
Because Chinn is a proper defendant as an “employer” under Title VII, Chinn’s argument that the court should not exercise supplemental jurisdiction over Counts III 5 and IV, the state law claims, is therefore denied.
II. Motion to Dismiss Count IV
Both defendants have moved to dismiss Count IV, intentional infliction for emotional distress under Illinois law, for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Defendants, in what can only be described as a grand waste of time and resources, have filed four separate motions to dismiss and four separate memoranda of law regarding each individual plaintiff. Each motion, however, is essentially identical in form and substance and will be addressed jointly by the court.
Under Illinоis law, a claim for intentional infliction of emotional distress must allege: (1) that the defendant’s conduct was extreme and outrageous; (2) that the plaintiff suffered severe emotional distress as a result; and (3) that the defendant knew or should have known that such distress was substantially certain to occur from the conduct.
McGrath v. Fahey,
A defendant’s conduсt is considered extreme and outrageous if it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.”
Public Finance Corp. v. Davis,
Defendants’ second argument, that plaintiffs have failed to allege severe emotional distress, similarly fails. Under Illinois law, the emоtional distress suffered must be such that no reasonable person could be expected to endure it.
Public Finance,
Finally, defendants argue that plaintiffs’ allegations of conduct occurring more than two years before the filing of this claim are time-barred and should therefore be dismissed. In Illinois, any actions for damages from intentional infliction of emotional distrеss must be commenced within two years after the injury occurred.
See
735 ILCS 5/13-202. For torts involving a continuing or repeated injury, however, the statute of limitations does not begin to run until the tortious acts cease.
City of Rock Falls v. Chicago Title & Trust Co.,
Plaintiffs have stated a sufficient claim of intentional infliction of emotional distress such that this court cannot hold аs a matter of law that plaintiffs would be unable to prove any set of facts to support their claim. Therefore, defendants’ motion to dismiss Count IV is denied.
CONCLUSION
For the reasons set forth above, defendant Chinn’s motion to dismiss aH counts is denied and defendants’ motion to dismiss Count IV is denied.
Notes
. The facts as set forth below are taken from plaintiffs’ complaint and will be accepted as true for the purposes of this motion.
. Curcio has worked at the Crab House since December 1982; Verest since August 1986; Waltz since August 1989; and Weng since January 1991.
. On November 29, 1994, Waltz аnd Curcio filed charges of sexual harassment with the EEOC against both defendants. Weng and Verest filed similar charges on December 6, 1994, and January 3, 1995, respectively. On January 18, 1995, the EEOC issued a Right to Sue letter for all of the harassment charges.
On January 3, 1995, Curcio and Weng filed charges of retaliation against both defendants,
. As defendants explain in their briefs, when a waitperson is disciplined at the Crab House, one type of discipline used is “gate duty.” Gate duty requires a waitperson to work a shift as a host or hostess rather than a waitperson, which results in less money for the evening.
. This court notes that, in reviewing Count III of plaintiffs' complaint, the allegations as currently set forth for assault and battery appear to be pled merely in a general manner and lack the specificity regarding each individual plaintiff as will be needed to sustain such a claim. Defendants have not, however, brought this to the court’s attention.