Ziccarelli v. Phillips

BENEDICT ZICCARELLI, Plaintiff, v. RICHARD G. PHILLIPS, JR., an individual,and PILOT AIR FREIGHT CORPORATION,a Pennsylvania corporation, Defendants.

Case No. 12 CV 9602

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: September 25, 2013

Judge Robert M. Dow, Jr.

MEMORANDUM ORDER AND OPINION

This matter is before the Court on Defendant's motion to dismiss [14]. For the reasons stated below, the Court grants the motion in part and denies the motion in part. The Court gives Plaintiff 28 days from the date of this order to replead the counts that the Court has dismissed and otherwise supplement the allegations of his complaint if he believes that he can do so within the requirements of Federal Rule of Civil Procedure 11.

I. Background

For the purposes of reviewing the instant motion, the Court accepts as true the facts alleged in Plaintiff's complaint and makes all reasonable inferences in his favor. See, e.g., McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879 (7th Cir. 2012).

A. Facts

Plaintiff Benedict Ziccarelli is a citizen of Illinois. [1] ¶ 1. He formerly was employed by Defendant Pilot Air Freight Corporation ("Pilot"), a privately owned transportation and logistics company that is incorporated and has its principal place of business in Pennsylvania. Id. ¶¶ 3, 6, 7. Pilot has offices throughout the United States, including Illinois. See id. ¶ 7.Defendant Richard Phillips, Jr. is a citizen of Pennsylvania. See id. ¶ 2.

Plaintiff began working at Pilot's Elk Grove Village, Illinois, office as a sales manager in July 2000. Id. ¶ 8. Plaintiff's salary at that time was $75,000 per year. Id. At some point, Plaintiff was promoted to the position of Midwest Regional Sales Director. Id. ¶ 9. In this position, Plaintiff received a salary of $95,000 per year and became eligible for performance bonuses. Id. The bonuses were payable according to a formula that Pilot's management orally conveyed to Plaintiff. Id. All of the performance reviews Plaintiff received while in this position were favorable. Id. ¶ 10.

In October 2005¹, a number of high-ranking members of Pilot's management took Plaintiff to dinner at the Pennsylvania Hotel to "award and celebrate the turnover of the Chicago office to a Franchise Office to be owned by Mr. Ziccarelli and Randy Gentile." Id. ¶ 11. Pursuant to an e-mail agreement, Plaintiff was to receive the franchise in late 2005 or early 2006. See [24] at 3. From that point forward, Plaintiff expected that he would be awarded a franchise. [1] ¶ 11. Plaintiff also expected, based on representations made by "Pilot management," that he would receive a promotion to vice president and a concomitant salary increase to $160,000 per year. Id. ¶ 12. Plaintiff's immediate supervisor, Gordon Branov, repeatedly reiterated the latter representation and at some point Pilot printed business cards that designated Plaintiff as a vice president. See id. ¶ 13. In light of these assurances, Plaintiff decided not to pursue employment opportunities with other companies that expressed interest in hiring him. Id. ¶ 17.

Plaintiff attended Pilot's national sales meeting in May 2006. See id. ¶ 20. While there, Plaintiff got into an alteration with Lou Cortese, who was at that time Pilot's president. See id.Plaintiff and Cortese had a "difference of opinion regarding the substandard performance of a Pilot vendor," and Cortese "physically and verbally confronted" Plaintiff about it during a national sales meeting. Id. Cortese was the aggressor during this incident and subsequently apologized to Plaintiff. Id. Plaintiff was never disciplined or reprimanded in connection with this incident. Id.

In 2008, Plaintiff was promoted from Midwest Regional Sales Director and became District Manager of Pilot's Chicago office. See id. ¶ 18. Plaintiff indicates in his briefing that he understood this promotion to be the initial step toward his eventual elevation to vice president. See [24] at 4. Plaintiff initially earned $101,745 per year in this position, but after only one month as District Manager he received a raise that increased his salary to $103,780 per year. See [1] ¶ 18. During Plaintiff's four-year tenure as District Manager, the Chicago office became profitable, broke records, and exceeded company profit expectations. Id. ¶ 19. Plaintiff held the position of District Manager until his termination from Pilot in July 2012. See id. ¶ 18. Plaintiff alleges in his brief that he performed "all of the job responsibilities of a vice president while his job title remained district manager." [24] at 5.

At some point during Plaintiff's tenure at Pilot, Branov made representations to Plaintiff concerning Plaintiff's bonus compensation. See [1] ¶ 15. Branov told Plaintiff that he would be guaranteed minimum quarterly bonuses irrespective of the actual bonus goals that he attained. Id. Branov also told Plaintiff that the bonuses related to Pilot's account with Amazon.com would be calculated pursuant to a formula different from the one used for all other accounts. See id. Pilot paid Plaintiff bonuses in accordance with Branov's representations during the third and fourth quarters of 2010 but stopped doing so after that despite Plaintiff's repeated requests to Branov and Branov's assurances that Plaintiff's bonus compensation would be computedpursuant to the new scheme. See id. ¶ 16.

In February 2012, Plaintiff had a heated telephone conversation with a subordinate employee, Steve Bullard. See id. Bullard worked in a facility managed by Plaintiff, and he had called to complain about an electrical outage for which he believed Plaintiff was responsible. See id. After the conversation, Bullard reported to Pilot's human resources that Plaintiff had threatened to kill him. Id. Pilot's human resources manager took no action after investigating Bullard's claims, and Pilot's counsel characterized Bullard's claims as "complete bullshit." Id.

On May 25, 2012, Plaintiff confronted Pilot employee Kathy Cieplevicz at work about her ownership and operation of Simplicity Freight Solutions, a company that directly competed with Pilot in contravention of Pilot's policies. Id. ¶ 22. Later that night, Cieplevicz, with whom Plaintiff "had a consensual relationship" that was known but not objected to by Pilot management, unexpectedly visited Plaintiff's house. Id. ¶ 23; [24] at 6. Cieplevicz was intoxicated and was angry about her earlier confrontation with Plaintiff. See [1] ¶ 23. Cieplevicz physically attacked Plaintiff's girlfriend. Id. The police were called and Cieplevicz was arrested on charges of assault and battery. See id. On the next workday, May 29, 2012, Plaintiff informed Branov both about Cieplevicz's competing business and her attack on his girlfriend. Id. ¶ 24. Plaintiff also "clearly expressed his discomfort" relating to the prospect of a continued working relationship with Cieplevicz, id., and expressed concern that "this was not an isolated incident and that Kathy Cieplevicz was capable of repeating such behavior." Id. ¶ 94. Plaintiff and Branov determined at this time that Cieplevicz should be terminated for cause. Id.

Cieplevicz was not terminated immediately, however. See id. ¶¶ 25-26. Instead, she remained at Pilot and did "all she could to fight her termination." Id. ¶ 27. Cieplevicz "was aware of many improprieties occurring at Pilot including discriminating and harassing behaviorby Pilot management and employees" and "us[ed] that information to leverage what should have been her for cause termination to a more favorable separation." Id. Cieplevicz also falsely alleged that Plaintiff had sexually harassed her. Id. Pilot's human resources manager interviewed Plaintiff about Cieplevicz's allegations. Id. ¶ 28. Plaintiff denied the charges and cooperated with the investigation at all times. Id. He also discussed other incidents of sexual harassment involving other Pilot employees and managers with Pilot's counsel during the investigation. See id.

Cieplevicz ultimately was terminated on June 29, 2012. See id. ¶ 26. Her termination was not for cause, and she received a severance package that her family described as "a ridiculous amount of money." Id. Plaintiff alleges that Cieplevicz was able to obtain such favorable separation terms by threatening to sue Pilot. See id. ¶ 32. Plaintiff further alleges that one of Cieplevicz's demands was that Pilot fire him. Id. ¶ 33.

Branov terminated Plaintiff's employment with Pilot three weeks after Cieplevicz was terminated, on July 19, 2012, "at or about the same time that Kathy Cieplevicz signed her severance agreement with Pilot." Id. ¶¶ 29, 37. Branov informed Plaintiff that the termination was for cause and was "based in part on two prior incidents": the May 2006 incident with Cortese and the February 2012 incident involving Bullard. Id. Plaintiff did not receive a severance package. See id. ¶ 37. After Plaintiff's termination, "Pilot has attempted to add additional reasons for [it], specifically that he showed 'poor judgment' regarding Kathy Cieplevicz, and was uncooperative during Pilot[']s investigation of Kathy Cieplevicz." Id. ¶ 29. Plaintiff alleges that the termination was not due to any of these incidents but was in fact a result of Pilot's attempts to "appeas[e] Kathy Cieplevicz's termination demands," id. ¶ 32, to extricate itself from various expensive agreements with Plaintiff, including promises to award Plaintiff afranchise, to promote Plaintiff to a vice presidency, and to pay Plaintiff bonuses according to the special formula articulated by Branov in 2010, see id. ¶¶ 34-36, and to retaliate against him for reporting Cieplevicz's unlawful conduct, expressing his concerns about his personal safety in the workplace, and for discussing other instances of sexual harassment during Pilot's investigation of Cieplevicz's allegations. See id. ¶ 42.

Since Plaintiff's termination, rumors have spread at Pilot and to others in the industry that he was...