charge establish that Johnson was paid lower wages than white secretaries in a similar position. Payment of wages to black secretaries which were lower than the wages paid to white secretaries in similar positions may be characterized as a form of differential treatment based on race. On a practical level, however, the claim for which Unichema may be held liable under Title VII is limited to differential pay scales based on race and denial of promotion. The mere allegation of "differential treatment" cannot be the basis for imposing liability on Unichema. Paragraph sixteen of the complaint does not specify the differential treatment, thus it amounts to no more than a summary of Johnson's discrimination charge. Although paragraph sixteen will not be dismissed or stricken, the allegation does not raise any new claims for liability distinct from the allegations of denial of promotion and equal pay.
II. Wilkes Title VII and Section 1981 Claims.
Wilkes has filed four claims against Unichema. Two of the claims are based on racial discrimination and the remaining two are based on sex discrimination.
Unichema argues that Wilkes' first claim should be dismissed because it requests a jury trial; the second claim should be dismissed under the Patterson holding; and the third claim should be dismissed on the basis that the alleged acts of Chambers do not rise to the level of actionable sex discrimination.
The court agrees that the third claim fails to allege sufficient facts to state a claim for sex discrimination under Title VII; however, the first and second claims state a cause of action under Title VII and § 1981.
Under Title VII, employers cannot lawfully refuse to hire an applicant based on his or her race. 42 U.S.C. § 2000e-2(a)(1).
To state a cause of action for race discrimination, the complaining party must allege that she "applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); see also Bruno v. Crown Point, 950 F.2d 355, 363 (7th Cir. 1991).
Wilkes has alleged sufficient facts to establish a Title VII violation. In her complaint, she alleges that she applied for the position of an executive secretary at Unichema, that she was qualified for the position and that Unichema refused to hire her as an executive secretary due to her race. The fact that she was offered the position of a receptionist/secretary, which pays a lower wage, is independent from Unichema's refusal to hire Wilkes as an executive secretary due to her race.
Wilkes first claim, however, will not be submitted to a jury. The Civil Rights Act of 1991 (the "1991 Act") provides that parties may request a jury trial on the claims of discrimination made under Title VII. Civil Rights Act of 1991, Pub. L. No. 102-166, § 102, 105 Stat. 1072 (1991). However, prior to the enactment of the 1991 Act, parties did not have a right to request a jury trial in a Title VII action. The applicability of the 1991 Act depends on the time of the challenged conduct of the employer. If the unlawful employment practice occurred prior to November 21, 1991, the 1991 Act does not apply. Mojica v. Gannett, 7 F.3d 552, 1993 WL 387929 at *4 (7th Cir. 1993). On the other hand, if the unlawful conduct transpired subsequent to the enactment date, the 1991 Act applies. Id.
In the instant case, the 1991 Act will not apply because the alleged refusal to hire Wilkes as an executive secretary occurred on September 23, 1991. The court agrees with Unichema that the 1991 Act does not apply to Wilkes' first claim; however, the court rejects Unichema's contention that the first claim must be dismissed because it requests a jury trial. Unichema misreads the amended complaint. Wilkes does not request a jury trial as to the first claim. Rather, the complaint states that "plaintiff WILKES demands a trial by jury on all issues triable to a jury." First Amended Complaint at 14 (emphasis added). With respect to the first claim, it is not a claim triable to a jury.
Wilkes second claim states sufficient facts to state a cause of action under § 1981. Section 1981 prohibits racial discrimination in the making and enforcement of private contracts.
42 U.S.C. § 1981. The prohibition encompasses the refusal to enter into a contract with another as well as the refusal to offer to make a contract on the basis of one's race or color. Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2372, 105 L. Ed. 2d 132 (1989). The statute, however, was not designed to extend to postformation racial discrimination or harassment, i.e. failure to promote, sexual harassment. Id. The reach of § 1981 is limited to conduct at the initial formation of a contract and to conduct which impairs the enforcement of that contract in the event of a breach.
Id. at 2374.
A claim of refusal to enter into an employment contract is actionable under § 1981 and Title VII. 109 S. Ct. at 2375. Unichema reads Wilkes' second claim as a failure to promote based on race and contends that Wilkes fails to satisfy the "new and distinct relation" standard to maintain a postformation racial discrimination action under § 1981.
Unichema's statement of the law regarding actionable postformation discrimination is correct, but Wilkes' second claim does not allege failure to promote based on race, a postformation discrimination. The allegations under the second claim demonstrate that Unichema refused to offer Wilkes the position of executive secretary position for which she initially applied solely based on her race. The alleged violation of § 1981 occurred on September 23, 1991 when Unichema offered Wilkes a lower paying position rather than the executive secretary position for which Wilkes applied because of her race. The reasonable and logical inference drawn from the allegation indicates that the refusal to offer Wilkes the executive secretary position occurred prior to any acceptance of an employment contract. Thus, Wilkes is not obligated to demonstrate the "new and distinct relationship" test as argued by Unichema. Accordingly, Wilkes' second claim states a cause of action under § 1981.
Wilkes third claim, however, fails to state a cause of action for sexual harassment under Title VII. Title VII prohibits employers from discriminating against any individual based on their gender as well as their race. 42 U.S.C. § 2000e-2(a)(1). Sexual harassment is a form of discrimination based on gender. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). A claim of sexual harassment may be established by alleging that the employee's economic privileges were linked to sexual misconduct, commonly referred to as the quid pro quo harassment, or that the sexual misconduct have created a hostile or abusive work environment. Saxton v. American Tel. & Tel. Co., 785 F. Supp. 760, 764 (N.D. Ill. 1992).
Not all work place conduct that may be characterized as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII such that it creates a hostile or abusive work environment. Meritor, 477 U.S. at 67. The challenged work place conduct must be "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
In the case at bar, the acts complained of under the third claim do not rise to the level of "severe or pervasive" such that they alter the condition of Wilkes' employment or create an abusive working environment. The allegations under the third claim establish that Chambers was a personnel manager for Unichema, but fail to explain the extent of his authority. According to the allegations, Wilkes began working for Unichema on October 7, 1991 and during the month of October 1991 Chambers allegedly asked Wilkes why she "had married so young when she could have 'fun' with guys like him" and whether ". . . her husband 'satisfied' her." First Amended Complaint P 33. Wilkes further alleged that approximately three months later at a company Christmas party, Chambers asked Wilkes why she would "'settle for second best when [she] could have the best with [Chambers].'" Amended Complaint P 34. The alleged October and December questions posed by Chambers, standing alone, cannot be described as sexual advances sufficiently severe or pervasive such that they alter Wilkes' employment or create an abusive working environment.
The third claim lacks factual allegations to show the circumstances surrounding Chamber's misconduct and its detrimental effect on the conditions of Wilkes' employment.
Furthermore, the factual allegations under the third claim are insufficient to state a cause of action for quid pro quo harassment. While the alleged sexually connotative inquiries were inappropriate and suggest that Chambers was an insensitive individual who lacked the necessary social etiquette, the inquiries do not rise to the level of sexual advances or requests for sexual favor actionable under Title VII. Moreover, Wilkes has not demonstrated a sufficient nexus between the inquiries and the denial of her employment. Hence, Wilkes' third claim is dismissed for failure to state a cause of action.
In sum, Johnson's claim that Unichema denied her additional training cannot be the basis for imposing liability on Unichema under Title VII because it is outside the scope of the EEOC charge. Johnson's allegation of differential treatment may be futile, but it is within the permissible scope of the EEOC charge. With respect to Wilkes' claims, her first and second claims allege sufficient facts to state a claim under both Title VII and § 1981. The third claim, however, fails to allege adequate facts to establish actionable sexual harassment under Title VII.
For the foregoing reasons, Unichema's motion for partial summary judgment as to Johnson's claim is denied in part and granted in part. Unichema's motion to dismiss Wilkes' claims is denied as to the first and second claim, granted without prejudice as to the third claim and granted with prejudice as to the fourth claim.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court