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VOLK v. COLER

July 8, 1986

VIVIAN VOLK, PLAINTIFF,
v.
GREGORY COLER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Mills, District Judge:

OPINION AND ORDER

Bench trial.

Sexual harassment, retaliation, and sexual discrimination.

All under Title VII.

This matter is before the Court for a decision on the merits following a trial by bench held simultaneously with a jury trial.

Vivian Volk, formerly a caseworker for the Department of Children and Family Services (DCFS), filed this action against six supervisory officials within the department, charging that each violated rights guaranteed to her by the First and Fourteenth Amendments to the United States Constitution. As to these Defendants individually, Ms. Volk sued under 42 U.S.C. § 1983 and § 1985 (conspiracy to deprive a person of the equal protection of the laws). She also sued the DCFS itself under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging employment discrimination and retaliation. This opinion resolves the merits of Plaintiff's Title VII case only, the other issues being resolved pursuant to jury trial and this Court's order on Defendants' motion for a directed verdict. Thus, the Court having heard the evidence presented during this eight-day trial, having determined the credibility of the witnesses, and being fully advised, hereby enters the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

Introduction

Vivian Volk is an adult, white female who, prior to the incidents giving rise to this lawsuit, was employed by Covenant Counseling Services as a child abuse out-reach worker. Covenant Counseling Services was housed in the Ottawa field office of the DCFS pursuant to a contract between the two agencies.

Defendant James Tapen was the supervisor of the Ottawa field office and allegedly sexually harassed Plaintiff. He was in charge of hiring someone for the position of Social Worker I with DCFS. Mr. Tapen allegedly made verbal threats to Ms. Volk and turned her down twice for the position and also had her prematurely transferred from the Ottawa field office to the Princeton office of the DCFS. Defendant Martin Lohman was Tapen's immediate supervisor. Defendant Jessie Hairston was the regional administrator of the Peoria region and supervised both Tapen and Lohman until March 17, 1980, when she became ill. Defendant Tom Ward took over her duties in her absence until she returned in May. After Hairston's return, she and Ward shared the duties of regional administrator until Hairston resigned in August or September. Defendant Jesse Viers was the labor relations specialist in the Peoria region assigned to handle Plaintiff's grievances. Defendant Gregory Coler was the Director of the DCFS.

I. Sexual Harassment

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) states that: "It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's . . . sex . . ." The language "terms, conditions, or privileges of employment" is "an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination." Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) (Goldberg, J., concurring), cert. denied, 406 U.S. 957, 92 S.Ct. 1058, 32 L.Ed.2d 343 (1972).

In accordance with the "expansive concept" of Title VII's prescriptions, this circuit has held that the Act prohibits an employer from imposing sexual consideration as a condition of employment, Horn v. Duke Homes, Div. of Windsor Mobile Homes, 755 F.2d 599 (7th Cir. 1985), and the Supreme Court has recently held that sexual harassment is a form of employment discrimination prohibited by Title VII. Meritor Savings Bank, FSB v. Vinson, ___ U.S. ___, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Although other doctrinal vehicles can sometimes be used to remedy the sexual harassment of an employee, see e.g., Moffett v. Gene B. Glick Co., Inc., 621 F. Supp. 244, 283-86 (N.D.Ind. 1985) (unlawful harassment may constitute state law torts such as intentional infliction of emotional distress, wrongful discharge or invasion of privacy); Horn v. Duke Homes, Div. of Windsor Mobile Homes, supra, 755 F.2d at 603 n. 3, sexual harassment "constitutes precisely the kind of `artificial, arbitrary, and unnecessary barrier to employment,' that Title VII was intended to prevent." Id. at 603 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971)). As stated by the high Court in Vinson:

  Since the [EEOC] guidelines were issued, courts
  have uniformly held, and we agree, that a
  plaintiff may establish a violation of Title VII
  by proving that discrimination based on sex has
  created a hostile or abusive work environment. As
  the Court of Appeals for the Eleventh Circuit
  wrote in Henson v. Dundee, 682 F.2d 897, 902
  (1982):
    "Sexual harassment which creates a hostile or
  offensive environment for members of one sex is
  every bit the arbitrary barrier to sexual
  equality at the workplace that racial harassment
  is to racial equality. Surely, a requirement that
  a man or woman run a gauntlet of sexual abuse in
  return for the privilege of being allowed to work
  and make a living can be as demeaning and
  disconcerting as the harshest of racial
  epithets."

Vinson, ___ U.S. at ___, 106 S.Ct. at 2405-06.

A harassment claim does not neatly fit the usual method of analysis in Title VII cases founded on class-based discrimination as set forth in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 403 (1983). These cases, recognizing the difficulty of obtaining direct evidence of an employer's intent to discriminate, permit a plaintiff to indirectly prove unlawful employer motivation by allowing him to make out a prima facie case of discrimination through the introduction of a minimal level of evidence which justifies an initial inference that an employer's personnel decision was based on discriminary motivation. The McDonnell-Douglas analysis then imposes upon the employer a burden of production: to articulate a valid, non-discriminatory reason for the employment action. See Johnson v. University of Wisconsin-Milwaukee, 783 F.2d 59, 63 (7th Cir. 1986).

This analysis, however, appears inappropriate in a harassment case, because once a plaintiff establishes that she was harassed and that the employer was involved via respondeat superior, it is difficult to imagine how the employer could articulate a legitimate reason for the harassment. See Moffett v. Gene B. Glick Co., Inc., 621 F. Supp. 244, 266 (N.D.Ind. 1985). Thus, courts ruling on Title VII harassment claims have developed a set of elements which, if proven, constitute a Title VII violation for sexual harassment:

(1) the employee belongs to a protected group;

  (2) the employee was subject to unwelcome
  harassment;
  (3) the harassment complained of was based on ...

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