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JUAREZ v. AMERITECH MOBILE COMMUNS.

September 10, 1990

ANNA M. JUAREZ, Plaintiff,
v.
AMERITECH MOBILE COMMUNICATIONS, INC., a Delaware Corporation, and PETER SHKRUTZ, individually and each of them, Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Anna M. Juarez brought this sexual harassment action against defendants Peter Shkrutz and Ameritech Mobile Communications, Inc. ("AMCI").

 Ms. Juarez's counsel failed to serve Mr. Shkrutz with the summons and complaint within 120 days of filing her complaint, however, as required by Federal Rule of Civil Procedure 4(j). Because Ms. Juarez's counsel failed to show good cause for not serving Mr. Shkrutz within the 120-day period, the court was required to dismiss this lawsuit as to Mr. Shkrutz. See Juarez v. Ameritech, No. 89 C 00017 (N.D. Ill. Nov. 28, 1989).

 Now AMCI has moved for summary judgment on Ms. Juarez's complaint. For the reasons stated below, AMCI's motion must be granted.

 I. BACKGROUND FACTS

 The following facts are undisputed. AMCI is a corporation in the business of providing cellular radio telecommunications and radio paging services. (12(l) Statement, para. 1.) *fn1" AMCI hired Ms. Juarez on May 27, 1986 as an administrative assistant. She reported to AMCI's treasurer, Richard M. Slavin. The job title "administrative assistant" is used by AMCI to designate clerical/secretarial positions. (12(l) Statement, para. 2.)

 Ms. Juarez's job duties for Mr. Slavin included typing, answering telephones, scheduling meetings, making travel arrangements, preparing expense accounts, and handling the mail. (12(l) Statement, para. 3.) Ms. Juarez also performed secretarial duties for various other AMCI employees, including Mr. Shkrutz, AMCI's assistant treasurer. (12(m) Statement, para. 4.) *fn2"

 The incidents of sexual discrimination of which Ms. Juarez complains began shortly after Ms. Juarez commenced working at AMCI. Four or five times from late June, 1986 until July 3, 1986 Mr. Shkrutz telephoned Ms. Juarez at work during business hours, speaking to her in a sexually suggestive manner. Three or four occasions during this same time period Mr. Shkrutz made sexually suggestive comments to Ms. Juarez face-to-face. After the fourth or fifth phone call, Ms. Juarez informed Mr. Shkrutz that the calls bothered her and asked him to stop making either sexually suggestive phone calls or comments. He did so. (12(l) Statement, para. 8.)

 On July 3, 8, and 9, 1986, however, Mr. Shkrutz engaged in more offensive behavior, the details of which the parties do not dispute for purposes of this motion. (12(l) Statement, para. 8.) Apparently fed up with Mr. Shkrutz's misconduct, Ms. Juarez told Sue Martinez, an accounts payable clerk at AMCI, about Mr. Shkrutz's behavior. Ms. Martinez in turn informed Kimieth Bettendorf, an accounts payable supervisor at AMCI, about Mr. Shkrutz's actions. (12(l) Statement, para. 12.)

 On the morning of July 10, 1986, Ms. Bettendorf met with Marsha Rybski, a general manager of human resources for AMCI. Ms. Bettendorf advised Ms. Rybski that an "unnamed party" was being sexually harassed at AMCI and inquired about AMCI's sexual harassment policy. *fn3" (12(l) Statement, para. 13.)

 Ms. Rybski advised Ms. Bettendorf that the person should file a formal complaint and that the offender would be stopped. (12(l) Statement, para. 13.) When Ms. Bettendorf told Ms. Rybski that the anonymous party feared coming forward to make a formal complaint because she was concerned that it would affect her continued employment at AMCI, Ms. Rybski responded, "please tell this person to come forward and not to be afraid of being fired or being harassed from the company in any way." (12(l) Statement, para. 14.) Ms. Bettendorf relayed this information to Ms. Juarez. (12(l) Statement, para. 15.)

 Early in the afternoon of the same day -- July 10, 1986 -- Ms. Juarez met with Ms. Rybski and told her about the incidents of sexual harassment involving Mr. Shkrutz. At that time, however, Ms. Juarez refused to file a formal complaint against Mr. Shkrutz or to permit Ms. Rybski to investigate Ms. Juarez's allegations. Ms. Rybski assured Ms. Juarez that her position at AMCI would not be jeopardized if she filed a formal complaint. (12(l) Statement, para. 16.)

 On Monday, July 14, 1986 Ms. Juarez met with John S. McClelland, director of human resources for AMCI, and filed a formal complaint of sexual harassment against Mr. Shkrutz. (12(l) Statement, para. 17.) Mr. McClelland assured Ms. Juarez both that she would not lose her job for filing her complaint and that he would take immediate action to resolve the situation within a week. (12(l) Statement, para. 18.)

 That same day Mr. McClelland spoke with Ms. Bettendorf and Ms. Martinez about the situation. (12(l) Statement, para. 25.) On July 16 and 17 Mr. McClelland spoke directly with Mr. Shkrutz. (12(l) Statement, para. 21.) He told Mr. Shkrutz that a formal complaint of sexual harassment had been filed against him and confronted Mr. Shkrutz with Ms. Juarez's specific allegations of sexual misconduct.

 Mr. Shkrutz admitted some of the allegations, but denied others. (12(l) Statement, para. 22.) Moreover, Mr. Shkrutz told Mr. McClelland that his relationship with Ms. Juarez was "mutual" and that Ms. Juarez gave him her telephone number and wrote him a "love" note. *fn4" (12(l) Statement, para. 23.)

 On July 18, 1986 both Mr. McClelland and Mr. Slavin met with Mr. Shkrutz. Mr. Slavin handed Mr. Shkrutz a memorandum reviewing and summarizing the results of Mr. McClelland's investigation. Mr. Shkrutz was told he was suspended for one week without pay because of his sexual harassment. (12(l) Statement, para. 26.)

 Approximately six months after Ms. Juarez filed her complaint of sexual harassment, AMCI terminated her, citing poor job performance. Prior to that time AMCI employees extensively documented Ms. Juarez's performance difficulties.

 For example, on July 30, 1986, Jan Deswik-Dolik, one of the persons for whom Ms. Juarez performed work, wrote a memorandum to Mr. Slavin complaining about Ms. Juarez's work performance. Specifically, Ms. Deswik-Dolik explained that Ms. Juarez did not follow directions, did not proofread documents she typed, and did not "exercise good judgment." (12(l) Statement, paras. 4, 35; Juarez Dep. Exhibit 8.) In November of 1986 Ms. Deswik-Dolik again complained to Mr. Slavin, this time about Ms. Juarez's typographical errors and errors in addition. (12(l) Statement, para. 36.)

 Other AMCI employees complained about Ms. Juarez's work performance as well. In August of 1986 Etna Przada, administrative assistant to AMCI's vice president and chief financial officer, informed Mr. Slavin that Ms. Juarez had difficulty "relaying telephone messages to the correct person" and that the messages she took were not accurate. (12(l) Statement, para. 37.) Ms. Przada also complained that Ms. Juarez failed to lock the vice president's desk and process his mail after filling in for Ms. Przada one day when she was ill. (12(l) Statement, para. 38.)

 In October of 1986 Charles Moran, another AMCI employee for whom Ms. Juarez performed work, also complained of Ms. Juarez's performance -- specifically, her clerical errors. (12(l) Statement, paras. 4, 39-40.)

 In August of 1986 Mr. Slavin evaluated Ms. Juarez's job performance for the first half of 1986. Mr. Slavin described Ms. Juarez's typing as "below expectations" because of typographical errors, use of incorrect document formats, failure to check spelling and logic in sentences, and failure to complete essential documents on time. (12(l) Statement, para. 42.) Mr. Slavin rated other areas of Ms. Juarez's performance as also unacceptable, stating that many problems outlined were present from the "beginning of her employment and that while the harassment issue didn't help, it was not the cause." (12(l) Statement, paras. 43-44, 46.)

 Although Ms. Juarez admitted making mistakes in performing her duties at AMCI (12(l) Statement, para. 41), she told Mr. Slavin that she disagreed with the comments on her performance review. Mr. Slavin reviewed with Ms. Juarez what he expected in terms of her improved performance. (12(l) Statement, paras. 47-49.)

 After developing admittedly reasonable performance objectives for Ms. Juarez for the second half of 1986, Mr. Slavin again reviewed Ms. Juarez's performance on November 18, 1986. (12(l) Statement, paras. 50-51.) However, he found Ms. Juarez's ...


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