United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
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]. 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
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
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
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
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].
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.
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.
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.
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.
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 ...