United States District Court, Northern District of Illinois, E.D
March 25, 1985
MAXINE SCOTT, PLAINTIFF,
SEARS, ROEBUCK AND CO., DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Maxine Scott ("Scott") charges Sears, Roebuck and Co.
("Sears") with employment discrimination in violation of:
1. Title VII of the Civil Rights Act of 1964 as amended,
42 U.S.C. § 2000e to 2000e-17 ("Title VII") and
2. the Illinois Human Rights Act (the "Act"), Ill.Rev.Stat.
ch. 68, ¶¶ 1-101 to 9-102.
Scott also claims her termination by Sears violated its
implied covenant of good faith and fair dealing under the
contract between them.*fn1 Sears has now moved under
Fed.R.Civ.P. ("Rule") 56 for summary judgment. For the reasons
stated in this memorandum opinion and order, Sears' motion is
1. Scott's Position with Sears
On June 30, 1980 Scott was hired to participate in a job
training course Sears was then conducting under contract with
the Chicago Alliance of Business Employment and Training, Inc.
Scott's wages were subsidized in part by federal Comprehensive
Employment and Training Act ("CETA") funds (Pl. Proposed
Findings of Fact ["Findings"] ¶¶ 3-4). Scott never entered into
a written contract with Sears beyond signing her employment
application form, which said she would be an at-will employee
(Scott Cont. Dep. 50 and Ex. A).
After Scott completed a 12-week course in automotive
mechanics, she was assigned to work in the automotive
department of Sears' Orland Park store. At that time the
automotive department was managed by Ernest McDowell
("McDowell"), with Joseph Sanders ("Sanders") as the shop
manager (Findings ¶ 6).
Scott was assigned to the department's brake section. Except
for an occasional assignment to replace tires and batteries,
all her work consisted of repairing and replacing defective
brake systems (Gadberry Dep. 29). Sanders assigned brake
mechanic Eddie Gadberry ("Gadberry") to train Scott during her
first three months at Orland Park (because Gadberry was on
vacation when Scott first arrived, mechanic Dave Fraser
trained her during her first few weeks) (Findings ¶ 7).
Scott's training by Fraser and Gadberry consisted of her
working directly with them on their brake jobs (Gadberry Dep.
11). They would instruct her as they went along and then have
her try her hand at the work (Scott Cont. Dep. 37). After
three months of that in-service training, Scott was assigned
her own work. When she ran into problems she would ask
Gadberry and other mechanics for help (id. at 40). On at least
one occasion Sanders asked Gadberry to evaluate Scott's
performance (Gadberry Dep. 46).
Scott testified at her deposition that Gadberry trained her
adequately (Scott Dep. 22).*fn2 He was basically pleasant to
her, and she considered him her "friend" in the same way she
considered all the mechanics her friends (Scott Dep. 22).
Gadberry testified at his deposition he considered Scott a
competent, although somewhat slow, mechanic (Gadberry Dep.
32-33, 88) and that he gave her a favorable evaluation when
Sanders asked about her performance (Gadberry Dep. 46, 48).
2. Alleged Sexual Harassment
Scott nevertheless claims Gadberry and other mechanics
repeatedly sexually harassed her. Gadberry, the principal
alleged harasser, supposedly "propositioned" her repeatedly
(Scott Dep. 24, 29, Cont. Dep. 31). She said the other
mechanics "flirted" with her (id. at 21-22, 42, 45, 56).
When pressed at her deposition about the details of
Gadberry's alleged harassment, Scott clarified he had never
touched her, made a lewd comment to her or explicitly asked
her for sex (Scott Dep. 25-29). Scott said when she asked
Gadberry for help with a brake problem, he often asked in
reply "What will I get for this?" (Scott Dep. 25).*fn3 Scott
interprets that to be an "obvious" request for sex
(id.). There is no indication Gadberry ever refused to help
Scott for failure to get something in return.
Scott also said Gadberry would often "ask to take me out"
(id. at 21, 24, 28). She said he was no more specific than that
(id. at 28, 34). He did suggest taking her to the "Green
Grasshopper," a restaurant in the same mall as Sears where the
Sears automotive employees often gathered (id. at 29). Again
she interprets those requests as requests for sex (id. at 29):
He didn't come out and tell me he wanted sex. You
don't have to come out and say you want to have
sex with somebody, if you want to take them out
this is what it's going to lead to.
Beyond Gadberry's alleged "propositions," Scott claimed he
was generally suggestive" or had an "attitude" (id. at 35-36).
Again she could not specify any words or actions that were
suggestive beyond an occasional wink (id. at 35-38). Finally,
Scott testified Gadberry had once offered to "come over and
give me a rubdown" (id. at 26), although Scott had not
remembered this incident when she testified about sexual
harassment at a co-worker's trial (id. at 26-27).
As for other mechanics, Scott claimed they were always
"coming over to talk" to her (id. at 21-22), "trying to take me
out on dates or whatever the case may be" (id. at 56) or
flirting (id. at 42, 45). Here the only specific details Scott
could offer are that mechanic Al Williams once made a lewd
comment to her (id. at 41) and mechanic Winston Taylor once
"hit me on my buttock" (id. at 44). As a result of the
alleged harassment Scott found the work environment "very
uncomfortable" (id. at 52).
Scott never complained to any supervisory personnel about
any alleged sexual harassment (Scott Dep. 48-49, 69-70, Cont.
Dep. 32-33). She said she just assumed they were aware of it
(id.). She offered no evidence of their knowledge, asserting
only that the men in the shop were a close-knit group and must
have known what was happening (id.).
3. Scott's Work Performance
Sears imposes productivity requirements on its brake
mechanics. They are generally expected to perform three brake
jobs per day (Gadberry Dep. 35-37). Although brake mechanics
are rotated in and out of tire and battery work, they receive
less productivity credit for that type of work (Findings ¶ 15).
Scott claims Sanders and McDowell told her she would not be
required to meet the normal quota during her first nine months
(Scott Cont. Dep. 6, 10-11, 30). During that time she would
not be judged on productivity, but she should try to work up
to two or two-and-a-half brake jobs per day (id. at 6). Scott
testified that by the end of the nine-month period she had
achieved a rate of two brake jobs per day (Scott Dep. 49). She
admits she was warned in April 1981 that she would be
terminated unless she improved her productivity (Scott Cont.
One reason Scott offers for failing to achieve a higher
productivity rate is a shortage of work in the shop, which led
to her frequent assignment to tire and battery duty. When work
had to be done in a hurry, such as when customers were
waiting, it was assigned to the regular male mechanics rather
than to Scott (Scott Cont. Dep. 44-45).*fn4 Moreover, Scott
claims the dispatcher discriminated against her on the basis
of her sex by giving preference to the male mechanics when
work was short (but she offers neither factual details nor any
evidence to support that allegation) (id.). Finally, Scott
asserts she relied on Sanders' and McDowell's promise by
failing to compete aggressively for work when it was in short
4. Scott's Discharge
On June 30, 1981 the CETA subsidy of Scott's wages was
terminated. On July 17, 1981 Scott was discharged along with
Arlene Otis ("Otis"), the only other female mechanic and the
only other mechanic in the CETA program. Scott claims McDowell
said when he fired her (Scott Dep. 59):
that he didn't want to pay a woman $7 an hour
when he could get a man to do three brake jobs
After Scott and Otis were fired no new employee was hired to
replace them. Their work was absorbed by the remaining
mechanics (Gadberry Dep. 56-57). Gadberry testified that after
Scott's and Otis' departure the per-mechanic workload was just
about right for the attainment of productivity quotas
Scott's Claims and Sears' Defenses
Scott has either stated or suggested a number of alternative
— and inconsistent — versions of the facts giving rise to
various theories of recovery:*fn5
1. Scott was fired in violation of Title VII
and the Act for refusing to accede to Gadberry's
2. Sexual harassment created an abusive work
environment in violation of Title VII and the
3. McDowell's alleged comment to Scott
indicates she was fired because of her sex in
violation of Title VII and the Act.
4. Scott was fired for lack of productivity.
That violated Sears' implied covenant of good
faith and fair dealing because:
(a) Sanders and McDowell led Scott to believe
she would not have to meet the productivity
quota. She relied on that by not working as
hard or competing for scarce work.
(b) Sears failed to assign Scott enough work
to enable her to meet her quota.
(c) Sears failed to provide Scott with enough
training to meet the productivity standards
unless she acquiesced in the sexual
propositions of the other mechanics.
In addition to discussing the merits of the Title VII claim,
Sears' summary judgment motion raises three legal issues:
1. Count II's "implied covenant" claim does not
state a cause of action cognizable under Illinois
2. No private right of action is conferred by
3. Scott's Title VII claim is barred by her
failure first to file a claim with the Illinois
Fair Employment Practices Commission ("FEPC").
Those three issues will be dealt with first, after which
Scott's still-surviving claims will be treated.
Count II's Implied Covenant Claim
Despite her admitted at-will employee status, Scott claims
Illinois law implies a covenant of good faith and fair dealing
that limits the circumstances under which Sears could
discharge her. But that is not the law in Illinois. In
Payne v. AHFI/Netherlands, B.V., 522 F. Supp. 18, 23 (N.D.Ill.
1980) this Court quoted Criscione v. Sears, Roebuck & Co.,
66 Ill. App.3d 664, 669-70, 23 Ill.Dec. 455, 459, 384 N.E.2d 91,
95 (1st Dist. 1978) in rejecting the very theory now advanced
[R]equiring an employer in an at will
relationship to terminate an employee only for a
legitimate business reason absent any other
restrictions by contract or statute would place
the courts in the untenable position of having to
assess an employer's business judgment. There has
been no attempt by the legislature to
so alter the State's employment policy and such a
step is not one for the courts to make. The rule
in this state is that an employment at will
relationship can be terminated for "a good
reason, a bad reason, or no reason at all."
Indeed, the more recent cases cited by Scott only serve to
reconfirm Criscione's vitality. Dykstra v. Crestwood Bank,
117 Ill. App.3d 821, 826, 73 Ill.Dec. 307, 311, 454 N.E.2d 51
(1st Dist. 1983); Cuerton v. Abbott Laboratories, Inc.,
111 Ill. App.3d 261, 66 Ill.Dec. 906, 909-910, 443 N.E.2d 1069
1072-74 (2d Dist. 1982). Count II thus fails to state a claim
under Illinois law.
Illinois Human Rights Act
To be sure, the Act prohibits both sex-based employment
discrimination and sexual harassment by employers. Ill.Rev.
Stat. ch. 68, ¶ 2-102(A) and (D). But it vests in the Illinois
Human Rights Commission (the "Commission") exclusive
jurisdiction over complaints by private parties. Ill. Rev.Stat.
ch. 68, ¶¶ 8-103, 8-111. Private litigants may sue in the
courts only for review of the Commission's actions. Armstrong
v. Freeman United Coal Mining Co., 112 Ill. App.3d 1020,
1022-23, 68 Ill. Dec. 562, 564, 446 N.E.2d 296, 298 (3d Dist.
1983). Accordingly this Court has no jurisdiction over Scott's
claim under the Act.
Sears argues Scott's Title VII claim is barred because she
failed, as 42 U.S.C. § 2000e-5(c) mandates, to file a claim
with FEPC in addition to EEOC at least 60 days before filing
her lawsuit. In accordance with established practice, EEOC
forwarded Scott's claim to FEPC (Scott Mem. Ex. A, date-stamped
as received by FEPC September 1, 1981, nearly 11 months before
Scott filed her suit). Under the FEPC-EEOC work-sharing
agreement, the latter still processed the claim. Of course
Sears, with its extensive experience with Title VII, is well
aware of that procedure (see its R.Mem. 1-2 n. 1). But its
agreeing not to pursue its argument on this score "if plaintiff
comes forward with proof" (id.) is disingenuous. This is after
all Sears' motion for summary judgment, with all reasonable
inferences from the evidence (here Scott Mem. Ex. A) to be
drawn in Scott's favor.
Thus Scott must be deemed to have satisfied — with EEOC's
help — the procedural prerequisites for a Title VII suit. This
opinion turns then to the merits under Title VII.
Summary Judgment Considerations
Surely there can be no mystery as to the operative
principles under Rule 56:
1. Rule 56(c) says judgment "shall be rendered"
if the pleadings and supporting evidentiary
show that there is no genuine issue as to any
material fact and that the moving party is
entitled to judgment as a matter of law.
2. Facts must be viewed in the light most
favorable to Scott, the non-movant, with
reasonable inferences drawn in her favor.
Hermes v. Hein, 742 F.2d 350, 353 (7th Cir. 1984).
3. Sears has the burden of showing there is no
genuine issue of material fact. Egger v. Phillips,
710 F.2d 292, 296 (7th Cir. 1983).
Yet each litigant displays a misunderstanding of those basic
On the current motion Sears draws its facts exclusively from
Scott's deposition testimony and proposed findings of fact.
For that reason Sears R.Mem. 3 urges the facts are
automatically seen in the light most favorable to Scott, so
there can be no issue of fact. That contention is plainly
wrong. Scott's testimony contains ambiguities and conflicts
and may therefore be susceptible of more than one
interpretation. Sears may not pick and choose among her
statements in a manner that distorts them, nor may it draw
inferences in its own favor from her ambiguous statements.
On the other side of the coin, Scott may not avoid summary
judgment merely because a central issue is partly
(Scott Mem. 9). What is required is a genuine issue as to one
or more material facts. Rule 56(e) provides:
When a motion for summary judgment is made and
supported as provided in this rule, an adverse
party may not rest upon the mere allegations or
denials of his pleading, but his response, by
affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there
is a genuine issue for trial. If he does not so
respond, summary judgment, if appropriate, shall
be entered against him.
Scott must, in response to Sears' properly supported factual
assertions, identify contrary evidence that could reasonably
lead to factual findings in her favor.
Merits of Title VII Claim
1. Scott's Refusal To Accede to Gadberry's Propositions
Scott speculates her discharge may have been attributable to
her refusal to accede to Gadberry's alleged propositions
(Scott Mem. 8, Cont. Dep. 31-33). But she offers no evidence
to support that hypothesis or to lead reasonably to such an
inference. On the one occasion Sanders consulted Gadberry
about Scott's performance (Gadberry Dep. 46), Gadberry
testified he gave Scott a favorable evaluation (id. at 46-49).
Scott has neither challenged that testimony nor offered any
evidence McDowell's decision to discharge her was based in any
way on Sanders' conversation with Gadberry.
It must be remembered Scott bears the burden of proof in the
underlying action. It is simply not enough for her to raise a
speculative possibility of discrimination. Rather Scott must
identify facts giving rise to a reasonable inference of
discrimination. Furnco Construction Co. v. Waters,
438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). She has
plainly not done so with respect to her charge of retaliation
2. Hostile Work Environment
Scott claims the sexual harassment to which she was
subjected created a work environment so hostile as to
constitute a Title VII violation independent of her discharge.
Section 2000e-2(a)(1) prohibits discrimination on the basis of
sex with respect to "compensation, terms, conditions, or
privileges of employment." That language was interpreted in
Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert.
denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972) to
include the state of psychological well being at the workplace.
At least three Courts of Appeal since Rogers have concluded
that sexual harassment may so poison a working environment as
to alter a "term, condition, or privilege of employment" in
violation of Title VII, even if the conduct does not result in
a discharge or denial of promotion. Katz v. Dole, 709 F.2d 251,
254 (4th Cir. 1983); Henson v. City of Dundee, 682 F.2d 897,
902 (11th Cir. 1982); Bundy v. Jackson, 641 F.2d 934,
943-46 (D.C. Cir. 1981).
Scott's "hostile environment" claim encounters three major
obstacles. Though her failure to surmount the third of those
is fatal to her claim, in the interests of completeness all
three will be discussed.
Scott's Second Amended Complaint seeks only damages for lost
wages and benefits resulting from her discharge. But because
an "hostile environment" claim is unrelated to discharge, such
damages are unavailable here. Bundy, 641 F.2d at 946 n. 12. In
addition, damages for mental suffering and emotional distress
are nonrecoverable under Title VII. Henson, 682 F.2d at 905.
Finally, because Scott is not entitled to reinstatement she
cannot seek injunctive relief to prevent future harassment. Id.
Thus, even were Scott able to establish an "abusive
environment" violation, she would be entitled at most to
nominal damages and the possibility of attorneys' fees. Id.
(b) Sears' Liability for Gadberry's Actions
Employers are strictly liable for sexual harassment by
who have the power to hire, fire or promote.*fn6 Horn v. Duke
Homes, 755 F.2d 599, 604-06 (7th Cir. 1985); Vinson v. Taylor,
753 F.2d 141, 149-50 (D.C. Cir. 1985); Bundy, 641 F.2d at 947;
see also 29 C.F.R. § 1604.11(c). Vinson would extend that to
any supervisory personnel. On the other hand, an employer is
liable for sexual harassment by nonsupervisory employees only
when the employer has actual or constructive knowledge of the
harassment. Barrett v. Omaha National Bank, 726 F.2d 424, 427
(8th Cir. 1984).
Scott cannot attribute to Sears either actual or
constructive knowledge of the alleged harassment. She admits
she never complained to a superior, and she offers no evidence
at all that Sears officials knew of harassment by Gadberry or
any other co-worker.*fn7 Even on the view most favorable to
Scott, the harassment can hardly be deemed so pervasive or so
severe that constructive knowledge could be imputed to Sears.
Scott does not complain of audible vulgarities or behavior
that would be apparent to Sanders or McDowell. Nor does she
complain of regular harassment by a number of co-workers.
Rather, except for an isolated touch and an isolated vulgar
comment by Al Williams, she complains of subtle behavior and
comments susceptible of innocent interpretations and
attributable primarily to a single person, Gadberry.
Because Scott has failed to identify facts that indicate
Sears' management knew of the harassment, Sears can be held
liable only if Gadberry can be considered a supervisor with
authority to hire, fire or promote Scott. But Gadberry had no
such power, nor was he really a "supervisor" (even assuming
Vinson were good law in this Circuit). He was merely a brake
mechanic assigned to train Scott and work with her. Sanders'
having once asked Gadberry how Scott was performing does not of
itself place Gadberry in a position of power to require Scott
to submit to harassment she would not otherwise have tolerated.
There is no indication Scott knew of Sanders' inquiry or
believed Gadberry could influence her status at Sears for
better or worse. Gadberry must therefore be considered a mere
(c) Severity of Harassment
Even if Sears could be held strictly liable for harassment by
nonsupervisory co-workers (as it cannot), Scott's claim would
still fail. All the cases (Katz, Henson and Bundy) cited by
Scott to establish that a hostile environment can violate Title
VII also teach that not all sexual harassment is severe or
pervasive enough to constitute such a violation. Henson, 682
F.2d at 904 stated:
The court in Rogers made it clear, however, that
the "mere utterance of an ethnic or racial epithet
which engenders offensive feelings in an employee"
does not affect the terms, conditions, or
privileges of employment to a sufficiently
significant degree to violate Title VII.
Similarly Katz, 709 F.2d at 256 emphasized:
Title VII is not a clean language act and it does
not require employers to extirpate all signs of
Unquestionably the conduct Scott complains of falls short of
the severity and pervasiveness necessary to constitute an
actionable hostile environment. It requires only a reading of
Katz, Henson and Bundy to see the shocking and pervasive
conduct they portray finds no parallel in the climate at Sears.
Apart from an isolated incident with co-worker Williams, Scott
was not subjected to vulgarity, demeaning comments, improper
inquiries about her private behavior or explicit propositions.
Even Scott characterized the behavior of the
bulk of her co-workers as flirting (Scott Dep. 42-43). And
Scott's characterization of the comments of Gadberry and
others as "propositions" depends almost entirely on inference.
It may be that some of Scott's co-workers behaved improperly
and that she felt uncomfortable. Nevertheless,
whether an employee is sexually harassed is
generally an objective determination and . . .
the focus of the question of sexual harassment
should be on the defendant's conduct, not the
plaintiff's perception or reaction to the
Jennings v. D.H.L. Airlines, 34 FEP Cases 1423, 1425 (N.D.Ill.
1984). Judged by such a standard, the work environment at the
Sears automotive center cannot be deemed so hostile as to have
altered a "term, condition or privilege" of Scott's employment.
3. Gender-Based Discharge Claim
Scott's only remaining claim is that she was impermissibly
discharged because of her sex. Here the underlying inquiry is
always whether the plaintiff's evidence (either direct or
circumstantial) raises a reasonable inference of
discrimination. Furnco, 438 U.S. at 576, 98 S.Ct. at 2949. Once
more Scott has failed to present specific facts sufficient to
create such an inference.
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.
1817, 1824, 36 L.Ed.2d 668 (1973) stated the method for
establishing a prima facie case of discrimination through
circumstantial evidence. One of the essential elements of a
McDonnell-Douglas prima facie case is that the plaintiff is
qualified for the position at issue. Parker v. Federal National
Mortgage Association, 741 F.2d 975, 978-79 (7th Cir. 1984).
Scott is plainly unable to make such a showing. By her own
admission, she never achieved the level of productivity
normally required of Sears brake mechanics (Scott Dep. 49).
Scott fares no better with assertedly direct evidence of
discrimination. She claims McDowell's comment that "he didn't
want to pay a woman $7 an hour when he could get a man to do
three brake jobs for that" (Scott Dep. 59) indicates she was
discharged on the basis of her sex.*fn8 True enough,
any reference to sex in the employment context raises a red
warning flag. But on analysis the McDowell statement does not
support Scott's contention at all.*fn9
Without question Scott's productivity after nine months was
still well below that expected by Sears. Although Scott
protests she was told she did not have to meet quotas during
training, she concedes (1) she knew she would have to work up
to three brake jobs per day (Findings ¶ 12) and (2) she was
warned in April 1981 her job was in jeopardy unless she
improved her productivity (Scott Cont.Dep. 46).
It is also undisputed that Sears did not have enough brake
work to justify hiring Scott and Otis at full salary after
their CETA-subsidized training period had ended. Scott
testified there was not enough brake work in the shop to keep
the mechanics busy (Scott Cont. Dep. 43-44). No replacements
were hired for Scott or Otis, and the remaining mechanics
easily absorbed their work (Gadberry Dep. 56-58).
In objective terms Sears laid off Scott —
an underproductive junior*fn10 employee — when the size of
its work force exceeded the volume of work. Fairly read,
McDowell's statement reflected an unwillingness to discriminate
in favor of a woman — Scott — under those circumstances. Had
Sears fired a male employee who was exceeding its expected
production standards (and who was senior to Scott) in order to
keep Scott on the payroll, it would have been vulnerable to a
meritorious charge of sex discrimination against the discharged
male. This Court is not obligated thus to distort Title VII
into a vehicle to promote discrimination at Scott's behest.
Scott has failed to identify specific facts that reasonably
lead to an inference of discrimination. There is no genuine
issue as to any material fact, and Sears is entitled to a
judgment as a matter of law. This action is dismissed with