Holman vy, State of Indiana, 211 F.3d 399, 403 (7th Cir. 2000). “Harassment that is inflicted without
regard to gender, that is, where males and females in the same setting do not receive disparate
treatment, is not actionable because the harassment is not based on sex.” Pasgua v. Metropolitan
Life Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996).

In Holman, amarried couple alleged that their supervisor had sexually harassed each of them
individually and on separate occasions. Holman, 211 F.3d at 401. The plaintiffs alleged that when
they rejected the supervisor’s sexual solicitations, the supervisor retaliated against each of them with
certain deprivations. Holman, 211 F.3d at 401. The court held that “because plaintiffs were alleging
sexual harassment by the same supervisor, they both, as a matter of law, could not provide that the
harassment occurred because of sex.” Holman, 211 F.3d at 399.

In Pasqua, coworkers spread rumors that Mr, Pasqua and Mrs. Vukanic were engaged in an
intimate relationship. Pasqua, 101 F.3d at 514. After Mr. Pasqua confronted the offender and
denied the rumors, the rumors continued to be spread by both men and women. Pasqua, 101 F.3d
at 514. Mr. Pasqua sued his employer, claiming that he had been subject to sexual harassment in
having to work in a hostile work environment and that he was demoted in retaliation for complaining
about the rumors. Pasqua, 101 F.3d at 514. The Court of Appeals affirmed the grant of summary
judgment for the employer because the court found that the harassment was not based on sex.
Pasqua, 101 F.3d at 516. The court noted that by the very nature of the gossip, both Pasqua and
Vukanic were made subject matter of the gossip and that the rumors spread for a number of reasons
having nothing to do with gender discrimination. Pasqua, 101 F.3d at 517.

Based on the above, Plaintiffs have failed to establish that the harassment was based on sex.

First, the conduct that they both claim to suffer (i.e. the notes, nude photographs and comments from


did not take corrective action. Mrs. Venezia argues that her husband’s coworkers, in retribution for
her refusal to terminate an employee, told Gottlieb employees that she had sat on an employee’s lap.
Mrs. Venezia’s tires were slashed after she complained about $35.00 being taken from a coworker’s
office. On July 12, 2002, Mrs. Venezia resigned from Gottlieb. On October 24, 2002, Mr. Venezia
resigned from Gottlieb because it would not extend him a medical leave of absence with a job
guarantee.

ANALYSIS

Mr. Venezia argues that the failure to extend him an extension of a medical leave of absence
constituted a coerced resignation or firing. In addition, his coworker’s conduct created a hostile
work environment in violation of Title VII; and he was discriminated against on the basis of his sex
by Gottlieb’s failure to take corrective action of his coworker’s conduct. Mrs. Venezia argues she
was subject to a hostile work environment in violation of Title VII and discriminated against on the
basis of her sex by Gottlieb’s failure to undertake corrective action.

To establish a prima facie case of hostile environment sexual harassment, a plaintiff must
demonstrate that: (1) he/she was subjected to unwelcome sexual harassment; (2) the harassment was
based on sex; (3) the sexual harassment had the effect of unreasonable interfering with the plaintiff's
work performance in creating an intimidating, hostile or offensive working environment that
seriously affected the psychological well-being of the plaintiff; and (4) there is a basis for employer
liability. Robinson v. Sappington, 351 F.3d 317, 328-29 (7th Cir. 2003).

In this case, Plaintiffs have failed to establish the second prong, that the harassment was
based on sex. “[B]ecause Title VII is premised on eliminating discrimination, inappropriate conduct

that is inflicted on both sexes, or is inflicted regardless of sex is outside the statute’s ambit.”



coworkers referencing Mrs. Venezia) is similar to the type of conduct that both the Holman and
Pasqua courts found insufficient to support a Title VII claim. An “equal opportunity” harasser is
not covered by Title VII. Holman, 211 F.3d at 403. Plaintiffs try to distinguish their case from
Pasqua by alleging that the discriminatory conduct that they were subject to was physically
threatening and humiliating. However, the question is not whether the Plaintiffs were subject to
conduct which was physically threatening and humiliating; the question is “whether members of one
sex are exposed to disadvantageous terms or conditions of employment to which members of the
other sex are not exposed.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).
Further, the conduct to which Mr. and Mrs. Venezia individually allege they were subjected (i.e., the
tire slashing, the spitting on Mr. Venezia’s personal belongings) does not support the allegation that
the alleged harassment or discrimination was based on sex.

Therefore, Counts I and I are dismissed without prejudice under Federal Rule of Civil
Procedure 12(b)(6) because they are insufficient as a matter of law.

CONCLUSION

For the foregoing reasons, Gottlieb Memorial Hospital, Inc.’s Motion to Dismiss is granted.

aw!

W. DARRAH
States District Judge



finute Order Form (0697)

yo United States District Court, Northern District of Illinois
Ni if Assigned Oo
ror Magittrate Judes Jobn W. Darrah than Aseigued Judge
CASE NUMBER 03 C 7225 DATE 3/17/2004
CASE Venezia vs. Gottlieb Memorial Hospital, Inc.
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) o Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

@) Qa Answer brief to motion due__. Reply to answer briefdue__.

(4) Qa Ruling/Hearingon____—_ssetfor__—_at

(5) Q Status hearing[held/continued to] [set for/re-set for]on__——set for at

(6) Q Pretrial conference[held/continued to] (set for/re-set for]on__——ssetfor_— at.
(1) Q Trial[set for/re-set for]on att

@ a [Bench/Jury trial] [Hearing] held/continuedto___at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) CLocal Rule 41.1 OFRCP41(a\(1) CO FRCP41(a)(2).

do «of (Other docket entry] Status hearing held. For the reasons stated in the attached memorandum
opinion and order, defendant’s motion to dismiss is granted, Enter Memorandum Opinion and Order.

di) @ (For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required. emer of notin
Notices mailed by judge's staff. 70
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Notified counsel by telephone, MAR 18
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courtroom 62 :H]id LI Y¥H Nble MAD aca JADE
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
FRANK and LESLIE VENEZIA, )
)
Plaintiffs, )
) No. 03 C 7225

v. )

) Judge John W. Darrah
GOTTLIEB MEMORIAL HOSPITAL, INC., )
a not-for-profit Hlinois corporation, )
)
Defendant. )

MEMO! UM OPINION ORDE
Plaintiffs, Frank and Leslie Venezia, filed suit against Defendant, Gottlieb Memorial
Hospital, alleging violations of Title VII, 42 U.S.C. § 2000(e)(f). Presently pending before the Court

is the Defendant’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12@)(6).' me
ef as

oo

Ypree

LEGAL STANDARD . wert 8 anvk

In reviewing a motion to dismiss, the court reviews all facts alleged in the complaint and any

reasonable inferences drawn therefrom in the light most favorable to the plaintiff. See Marshall.
Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000) (Marshall-Mosby). A
plaintiff is not required to plead the facts or the elements of a claim, with the exceptions found in
Federal Rule of Civil Procedure 9. See Swierkiewicz v. Sorema, 534 U.S. 506, 511 (2002); Walker
v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). A filing under Federal Rules of Civil Procedure
need not contain all the facts that will be necessary to prevail. It should be “short and plain,” and
it suffices if it notifies the defendant of the principal events. Hoskins v. Poelstra, 320 F.3d 761, 764

(7th Cir. 2003). Dismissal is warranted only if “it appears beyond a doubt that the plaintiff can



Prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The simplified notice pleading relies upon liberal discovery and
summary judgment motions to define disputed issues and facts and to dispose of unmeritorious
claims. Swierkiewicz, 534 U.S. at 513.

BACKGROUND

A reading of the Complaint supports the following summary of the alleged operative conduct
of the parties.

Gottlieb employed Frank Venezia as a maintenance worker. From May 1, 2001 to
February 25, 2002, Mr. Venezia’s coworkers subjected him to a sexually hostile work environment
by conduct which included: receipt of a nude photograph of a female with a reference to his wife,
nude photographs of men, derogatory notes and statements alleging Mr. Venezia obtained his job
because his wife had engaged in sexual conduct with her supervisor, and other notes and statements
regarding Mr. Venezia’s wife and the couple’s sexual relationship. Furthermore, Mr. Venezia’s
supervisor questioned him about his attitude and, in a subsequent maintenance department meeting,
sat him in the center of the room while his coworkers commented on the problems that they had with
Mr. Venezia. Mr. Venezia’s coworkers also subjected him to other childish behavior, such as
spitting on his belongings, not letting him sit with them at a Christmas party, not talking to him, and
blaming him for damage to a bobcat vehicle.

Gottlieb employed Mrs. Venezia as the education director of its daycare center. In December
2001, Mrs. Venezia discovered the notes and photographs that her husband received from his
coworkers that are discussed above. Mrs. Venezia accompanied her husband to report the notes and

photographs to Gottlieb’s Human Resources Department. Gottlieb conducted an investigation but