The opinion of the court was delivered by: Mihm, Chief Judge.
Currently pending before the Court are the Defendants'
Motions to Dismiss Plaintiff Roy Griffith's Complaint alleging
sexual harassment in violation of his rights under Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,
et seq. For the reasons set forth below, this Court adopts the
Report and Recommendation of Magistrate Judge Kauffman (# 33)
and the Defendants' Motions to Dismiss (# 17, 21, 23) are
Roy Griffith is employed as a maintenance electrician by
Defendant Keystone Steel & Wire ("Keystone"), a corporation
doing business in the State of Illinois. Complaint, pp. 2-3.
Also named as Defendants in this suit are Charlie Cutting, Lee
Langley, Harold Scoby, Rick Jay, and Eric Eberly, all of whom
were employed as foremen with the Defendant Keystone at the
time of the alleged violation. Complaint, p. 2.
Griffith and other Keystone employees are represented by the
Independent Steel Workers Alliance and are employed pursuant
to a collective bargaining agreement ("CBA"). Keystone's
Motion to Dismiss, p. 2. The CBA contains a provision stating
It is the continuing policy of the Company and
the Union that the provisions of this Agreement
shall be applied to all employees without regard
to sex, race, color, religious creed, or national
origin. Keystone's Memorandum in Support of
Motion to Dismiss, Exhibit 1, p. 7, paragraph
The CBA further provides a grievance procedure to settle any
differences that arise between the company and union member
employees. The first step of the grievance process is for an
employee to discuss the problem with his foreman.
Id., p. 55, paragraph 16.1. If not resolved at this stage, the
grievance may be filed in written form and go through various
stages of review. Id., pp. 55-59. At the end of these stages of
review, if the grievance is not settled, it "may be presented
to arbitration." Id., p. 59, paragraph 16.541.
From mid-October 1992 through January 1993, Griffith alleges
that he was subjected to "unwelcome sexual advances, requests
for sexual favors, [and] verbal or physical conduct of a
sexual nature" by Mr. Cutting "in exchange for favorable
working conditions or terms." Complaint, p. 3. Griffith states
that he did not encourage or consent to this conduct, which he
claims had a detrimental effect on his employment and created
a hostile and abusive work environment. Id., pp. 3-4. He
repeatedly complained to Defendants Cutting, Langley, Scoby,
Jay, and Eberly about the harassment but they "encouraged,
enjoyed, approved or ratified" the conduct. Id., p. 4. Griffith
filed a grievance on or about February 2, 1993. Keystone's
Motion to Dismiss, p. 3. On or about April 12, 1993, Griffith
filed a charge of discrimination with the State of Illinois
Department of Human Rights, which then filed the charge with
the Equal Employment Opportunity Commission ("EEOC").
Complaint, p. 2. The EEOC issued Griffith a right to sue letter
on August 28, 1993. Id.
Griffith claims that the sexual harassment interfered with
his work environment, causing him to endure pain and
medical care and counseling, and avoid overtime work.
Complaint, pp. 4-5. In Count I of his Complaint, Griffith
seeks compensatory and punitive damages from Defendant
Keystone. Id., pp. 1-6. In Count II, he asks for compensatory
and punitive damages from Defendant Cutting. Id., pp. 6-11. In
Counts III through VI, Griffith seeks compensatory and punitive
damages from Defendants Langley, Scoby, Jay, and Eberly
respectively. Id., pp. 11-30.
Defendant Keystone filed a Motion to Dismiss the Complaint
(# 17). Defendant Cutting filed a Motion to Dismiss Count II
of the Complaint (# 23). Defendants Langley, Scoby, Jay, and
Eberly filed a Motion to Dismiss Counts III through VI of the
Complaint (# 21). Magistrate Judge Kauffman recommended that
the Defendants' Motions to Dismiss be denied.
"A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46,
78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). The factual allegations
of the complaint are to be construed in the light most
favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232,
235-37, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).*fn1
Keystone moves to dismiss Griffith's Complaint for lack of
subject matter jurisdiction because the terms of the CBA
between Keystone and the union provide the grievance procedure
and arbitration as the appropriate remedy. As authority for
this proposition, Keystone cited Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)
and a series of cases following the Supreme Court's decision in
This Court agrees with Magistrate Judge Kauffman that
Gilmer does not apply to the facts of this case. Unlike the
plaintiff in Gilmer, Griffith did not sign an individual
agreement to arbitrate. He is only bound by the union's CBA. He
is not suing to enforce contractual rights, which ...