The opinion of the court was delivered by: ANN CLAIRE WILLIAMS
This matter is before the court on defendants' motion to reconsider the court's January 31, 1991 opinion ("January opinion) granting partial summary judgment in favor of plaintiff, the Equal Employment Opportunity Commission ("EEOC"). For the reasons explained below, the motion to reconsider is granted, and the court vacates summary judgment in plaintiff's favor.
The pertinent facts are as follows. Defendant, Audrey Sedita ("Sedita"), is the President and sole shareholder in defendant clubs, Women's Workout World ("WWW"). WWW consists of approximately fifteen health clubs which have an exclusively female membership. The majority of the clubs employ one Manager, one Assistant Manager, and approximately fifteen to twenty Instructors.
Defendants do not employ men in any of the enumerated positions because they claim that the essence of these positions involves a substantial amount of intimate physical contact with members, and exposure to nudity and partial nudity in the showers, locker rooms, and exercise rooms.
Although a few men have been hired to work as Class Givers, defendants conclude that employing males as Managers, Assistant Managers, and Instructors would violate club members' legitimate privacy interests.
The parties filed cross motions for partial summary judgment in November 1989 and January 1990, concerning whether gender is a Bona Fide Occupational Qualification ("BFOQ") for the Manager, Assistant Manager, and Instructor positions.
The court denied both motions in its October 22, 1990 opinion ("October opinion"). U.S. EEOC v. Sedita, 1990 U.S. Dist. LEXIS 14238 (N.D. Ill. 1990). However, the court commented on the paucity of the record and invited additional briefing on whether the alleged "intimate" touching implicated a legitimate privacy interest. Sedita, No. 87 C 2790, slip op. at 9.
Subsequently, the EEOC moved the court to reconsider its October opinion. Plaintiff argued that it was entitled to partial summary judgment because defendants had failed to demonstrate all elements of the BFOQ defense on which they have the burden of proof. In its January 31, 1991 opinion ("January opinion"), the court granted reconsideration and entered partial summary judgment in favor of the EEOC. U.S. EEOC v. Sedita, 755 F. Supp. 808 (N.D. Ill. 1991). In so doing, the court emphasized that defendants' signed petition and Sedita's deposition testimony was inadequate to show a factual basis for believing that men could not be employed, and that defendants' blanket rejection of various alternatives to sex-based hiring was improper. Sedita, 755 F. Supp. 808, 811-12 (N.D. Ill. 1991).
Defendants ask the court to reconsider its January opinion based upon additional evidence in support of their BFOQ defense. Defendants also argue that reconsideration is appropriate because the summary judgment standards previously applied by the court were unduly harsh. However, plaintiff insists that the general rule in this circuit is that the courts will not allow the parties to present new evidence or new legal arguments, which could have been presented before. See e.g., Publishers Resource, Inc. v. Walker-Davis Publications, 762 F.2d 557, 561 (7th Cir. 1985) (Motions to reconsider should not be used to introduce new evidence that could have been adduced during the pendency of the summary judgment motion); Butler v. Sentry Ins. A Mut. Co., 640 F. Supp. 806, 812 (N.D. Ill. 1986). After much deliberation, and careful consideration of both parties' arguments, the court has decided to grant reconsideration.
Although the court agrees with the general rule against reconsideration of new evidence, the unique facts of this case dictate that the court depart from it. In the instant case, defendants seek to introduce evidence which was discovered after the court ruled on, and denied, the parties' cross motions for summary judgment.
After the denial of the cross motions for partial summary judgment, both sides were free to conduct additional discovery in order to strengthen their cases. Thus, this is not a case in which the defendants' presentation of new evidence represents an attempt to undermine the court's ruling, or to gain a tactical advantage by delay. Rather, defendants were gathering the evidence at issue before the court ruled against them, and after the court had commented on the need for more evidence.
Moreover, confusion regarding the presentation of the new evidence existed on many levels. Apparently, there was a misunderstanding concerning whether the defendants planned to submit supplemental evidence while the EEOC's motion for reconsideration was pending. Although, the court believed that the defendants planned to present any additional evidence they had on the motion for summary judgment at that time, defendants were under a contrary impression. In sum, the court finds that reconsideration is appropriate on the facts presented here.
Accordingly, the motion to reconsider is granted. Thus, the court will reconsider, under all of the evidence presented, whether the EEOC is entitled to summary judgment because defendants have failed to raised a genuine issue of material fact on each element of the BFOQ defense.
Summary judgment is appropriate when the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir. 1989). The moving party has the initial burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party must then set forth specific facts, through affidavits or other materials, that demonstrate disputed material facts that must be resolved at trial. Id. at 324. The court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis added). However, if "the evidence presented by the nonmovant . . . [is] merely colorable or . . . not significantly probative, summary judgment [is] proper." Wolf, 870 F.2d at 1330. Moreover, there can be no "genuine issue as to a material fact" where a party fails to make a showing sufficient to establish the existence of an element on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-323.
Since the EEOC does not bear the burden of proof on the BFOQ defense, its burden "may be discharged by 'showing' -- that is pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Defendants must then make a showing ...