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Gorcos v. Town of St. John

United States District Court, N.D. Indiana, Hammond Division

September 20, 2016

JOAN GORCOS Plaintiff,
TOWN OF ST. JOHN, et al., Defendants.


          JON E. DEGUILIO Judge.

         This case arises from Plaintiff Joan Gorcos' allegation that she experienced sexual harassment while employed as an administrative assistant for the Town of St. John, Indiana (the Town). Her complaint brings numerous claims against the Town, Town Manager Stephen Kil and Town police officers Frederick Frego, Michael Fryzel and James Turturillo. The Defendants have now filed three motions to dismiss in which they argue that several of the counts alleged in Gorcos' second amended complaint fail to state a claim upon which relief can be granted. [DE 62, 86, 88].[1] The Plaintiff has responded by opposing those motions and arguing that one of them should be stricken as untimely. [DE 105]. The parties' motions are now fully briefed and ripe for review.


         In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), the Court will take the facts alleged by the Plaintiff to be true and draw all reasonable inferences in her favor. A complaint must contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, that statement must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Evaluating whether a Plaintiff's claim is sufficiently plausible to survive a motion to dismiss is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting Iqbal, 556 U.S. at 678).


         Plaintiff Joan Gorcos was employed as an administrative assistant for the Town of St. John, Indiana Police Department. In the course of her employment, she alleges that she was sexually harassed by three police officers: Commander Michael Fryzel, Police Chief Fred Frego and Sergeant James Turturillo. She contends that these officers engaged in numerous instances of misconduct, including:

July 10, 2013: Fryzel, in a room with Gorcos and Turturillo, told Gorcos that if he were chief of police “dispatchers would wear mini-skirts and halter tops” and “you would look awesome because of your big melons.” When Gorcos responded that this comment constituted harassment, Fryzel said “I didn't say anything wrong. In fact, Jim, didn't she just grab my cock?” Turturillo responded “Yes, sir, she did.” [DE 79 at 8-9].
February 2, 2015: Gorcos walked into Frego's office with Turturillo and Fryzel behind her. While she was speaking to Frego, he began to cover up a smile. Gorcos turned around and saw Fryzel who stated, while cupping his hands, “I was noticing how big your breasts looked today . . . they look really huge.” Turturillo laughed. Gorcos asked Frego to reprimand Fryzel, but Frego instead exclaimed “Michael, Michael, Michael[!]” Fryzel again cupped his hands and commented on Gorcos' breasts. Frego laughed and told him to stop. When Gorcos left Frego's office, Fryzel followed her down the hall and slapped her buttocks. [DE 79 at 6-7].
February 4, 2015: Fryzel and Turturillo were in Gorcos' office and Fryzel stated to Turturillo “Look at those melons. They look hmm-hmm good.” Gorcos turned to Turturillo stating “isn't that a violation of [the sexual harassment] policies that you just wrote?” Fryzel then said, “Those policies don't apply to me. I am a commander, so they don't apply.” [DE 79 at 8].
March 2, 2015: Fryzel entered Gorcos' office and said, among other things, “I wanted to come in and see your big titties but it was [okay] because I used the thought of them to spank it over the weekend” and “I'm a sick fucker.” He further poked Gorcos' breasts, said “I can just imagine my cock between your breasts” and thrusted his hips. He also ran his hand up Gorcos' right leg, while repeating “I just want to do you.” [DE 79 at 5-6].[2]

         On March 3, 2015, Gorcos says that she reported the March 2, 2015 incident to Frego. Frego and Town Manager Kil then called Gorcos to Frego's office on March 4, 2015. They told Gorcos she did not need a lawyer, that she should not report any of the harassment she experienced and that Fryzel would retire immediately in exchange for “complete confidentiality.” [DE 79 at 10]. Kil and Frego pressured Gorcos to take this deal and told her that if she did not, Fryzel would fight her “tooth and nail” and it would “get ugly.” Id.

         Gorcos did not take the deal. Rather, she filed for a protective order against Fryzel, which she obtained on March 6, 2015. She also served a notice of tort claims on the Town and filed a complaint with the EEOC (and, later, a supplemental complaint for retaliation). She received a right to sue letter from the EEOC on October 21, 2015 and this lawsuit followed on March 9, 2015.

         This matter is now before the Court on motions to dismiss causes of action in Gorcos' second amended complaint. That complaint alleges nine counts: (1) Fourth Amendment violation via 42 U.S.C. § 1983 against Fryzel; (2) 42 U.S.C. § 1985 conspiracy against Kil and Frego; (3) Title VII against the Town; (4) Title VII retaliation against the Town; (5) negligent retention against the Town, (6) negligence against Frego, Turturillo and Fryzel, (7) battery and false imprisonment against Fryzel, (8) declaratory relief against the Town and (9) 42 U.S.C. § 1986 failure to prevent a conspiracy against Kil, Frego, Fryzel and Turturillo.

         This order addresses four motions. First, Frego, Kil, Turturillo and the Town filed a motion to dismiss Gorcos' second, fifth, sixth and ninth claims and to strike her eighth claim. [DE 62, 63, 69, 70]. While that motion was filed in regard to Gorcos' first amended complaint, the parties have since agreed that it should be considered as to all of the above counts but the sixth count of Gorcos' operative second amended complaint. [DE 80]. Second, Defendants Frego and Turturillo have filed a motion to dismiss Gorcos' now-revised sixth claim. [DE 86, 87, 106, 108]. Third, Defendant Fryzel has moved to dismiss Gorcos' first and sixth claims. [DE 88, 89, 107, 113]. Fourth, the Plaintiff filed a motion to strike Defendant Fryzel's motion [DE 88] as untimely. [DE 105, 114]. The Court now evaluates the merits of these motions.


         Motions to Strike

         The Court initially addresses the parties' motions to strike. First, the Plaintiff seeks to strike Fryzel's motion to dismiss count I of her complaint [DE 88] because she says it was not filed in compliance with the Court's minute order of April 13, 2016 [DE 80]. [DE 105]. In that order, the Court recognized that the Plaintiff's second amended complaint differs from her first amended complaint only as to count VI. Accordingly, in the interest of efficiency, the Court proposed to consider the motion to dismiss the first amended complaint filed by Frego, Kil, Turturillo and the Town as to all counts other than count VI of the second amended complaint. The Court ...

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