she alleges sexual harassment, retaliation and constructive discharge pursuant to Title VII of the Civil Rights Act of 1964 and the Illinois Human Rights Act. 42 U.S.C. 2000(e), et seq.; 775 ILCS 5/8-101, et seq. Ms. Dellert is an Illinois citizen. TVI is an Illinois corporation. TVI operates one up-scale retail eye glass outlet in Chicago, Illinois and two in Texas. Until 1992, TVI managed a store in New York which was owned by an unrelated third party. Mr. Mackin was president of TVI at all times relevant to this action.
On July 21, 1992, Ms. Dellert submitted an application for employment at TVI's Chicago store. At the time she applied for the job with TVI, Ms. Dellert was working as a model. Her modeling assignments consisted primarily of sportswear, casualwear and some business attire. Ms. Dellert modeled lingerie on one occasion for Sears. Although she never modeled swimsuits for a client, she had some photographs of herself in a conservative swimsuit in her portfolio.
On July 27, 1992, TVI offered Ms. Dellert a job as an optician at a salary of $ 8.00 per hour and a two percent commission on sales she made. Mr. Sharpe told Ms. Dellert that there would be an opportunity for a raise after a 90-day probationary period. Ms. Dellert accepted the job offer.
Mr. Mackin lives in California, but travels to the Chicago TVI store from time to time. During Ms. Dellert's tenure at TVI, Mr. Mackin visited the Chicago store four to five times. Each visit normally lasted two to three days. Mr. Mackin also makes regular telephone calls to the TVI store in Chicago to check up on business and "chitchat." Shortly after Ms. Dellert began work, Mr. Mackin made such a call. Mr. Mackin told Ms. Dellert that he understood that she had worked for Service Optical, that she was a model and that she was engaged. Although Ms. Dellert did not find Mr. Mackin's comments about her modeling and engagement offensive, she did think that the comments were unnecessary.
On or about August 9, 1992, during one of Mr. Mackin's visits to Chicago, Ms. Dellert and Dennis Hardenstein ("Mr. Hardenstein"), Ms. Dellert's co-employee, were in the store. TVI had recently received a shipment of sun glasses. Mr. Mackin asked Ms. Dellert to try on a pair of the glasses, and when she did, commented that they would look much better without a skirt.
On that day or the next day, Mr. Mackin brought in a photograph of a model that he was debating using for advertisement purposes. The model was lying on her stomach, her back was completely naked and most of her buttocks were showing. Glass frames were balanced on her back. Mr. Mackin showed the photo to everyone in the store at the time, including Ms. Dellert, Mr. Sharpe and Mr. Hardenstein. Mr. Mackin said to Mr. Sharpe: "This is why I can't have Jill model for us. If she were in this position, I would have to jump her."
During the same day, Ms. Dellert and Mr. Mackin discussed developing film for TVI, including the types of processes that could be used. Ms. Dellert told Mr. Mackin that she had examples of black and white photos, color photos and laser prints in her modeling portfolio and offered to show Mr. Mackin the portfolio. Mr. Mackin asked Ms. Dellert if the portfolio contained pictures of her in sexy lingerie or swimwear, and, said if not, he did not want to see it.
After these occurrences, Ms. Dellert felt uncomfortable. In August, 1992, she complained to Mr. Sharpe about Mr. Mackin's comments. Mr. Sharpe told Ms. Dellert that Mr. Mackin was a little rough around the edges and that she should not let him affect her. Ms. Dellert continued to feel uncomfortable into September, 1992.
In addition to the above three statements, in five to ten different phone conversations in September and October 1992, Mr. Mackin asked Ms. Dellert if she was still engaged. Mr. Mackin made at least three or four statements about the female anatomy when he was in the TVI office, but the evidence does not indicate Ms. Dellert heard him make these comments. He made one such statement in front of a female eyeglass representative. Mr. Mackin also made rude comments about pretty women who were customers or passersby such as "God, those are big" or "God, those are great legs," but again there is no evidence in the record that Ms. Dellert heard him make these statements.
In November, 1992, Ms. Dellert and Mr. Mackin discussed Ms. Dellert's raise. Mr. Mackin offered to increase Ms. Dellert's percentage on commission rather than her salary. At one point, Mr. Mackin said that he would discuss the raise with his partners and get back to Ms. Dellert in a few days. Ms. Dellert was going to be off work during that time so Mr. Mackin asked for her home telephone number. When Ms. Dellert told Mr. Mackin that she lived with two female roommates, he said that he would be right over. (Mr. Mackin was in California at the time. Dellert Aff. PP 14, 15.)
Ms. Dellert again complained to Mr. Sharpe about Mr. Mackin's comments. Mr. Sharpe talked to Tim Petry, a TVI shareholder, who spoke with Denis Mola, another TVI shareholder, who, in turn, told Mr. Mackin that Ms. Dellert had complained. Mr. Mackin called Ms. Dellert in November, 1992. After this telephone conversation, Mr. Mackin did not make any further comments to Ms. Dellert which she believed were harassing.
During this same time period, Mr. Mackin asked Mr. Sharpe to have Ms. Dellert sign a letter of waiver of any claims against Mr. Mackin. Mr. Sharpe told Mr. Mackin he did not think that Ms. Dellert would sign such a letter. Following these events, Ms. Dellert was given a raise from $ 8.00 per hour to $ 9.50 per hour, effective December 1, 1992.
Other TVI employees made various observations. Mr. Sharpe described Ms. Dellert as crying and nearly breaking down emotionally over Mr. Mackin's treatment of her. Mr. Hardenstein noticed Ms. Dellert's withdrawal immediately after some of Mr. Mackin's statements and felt that Ms. Dellert was hurt quite a bit by the statements.
Ms. Dellert never indicated that she was receptive to Mr. Mackin's comments. When Ms. Dellert resigned in February, 1993, she told Mr. Sharpe that she could not work in a situation where she did not know where or when the sexual comments would recur. Augie DeLarosa ("Mr. DeLarosa"), a male, replaced Ms. Dellert. Mr. DeLarosa and Ms. Dellert had equivalent experience, but Mr. DeLarosa did not have a college degree.
Standard of Review
Summary judgment disposes of a claim before trial in instances where a trial is unnecessary and can only result in delay and expense. Ford Motor Credit Co. v. Devalk Lincoln-Mercury, Inc., 600 F. Supp. 1547, 1549 (N.D. Ill. 1985). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. p. 56(c). A genuine issue of fact exists when a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All reasonable inferences must be drawn in favor of the non-moving party; however, the mere possibility that a factual issue might exist is not an adequate basis for denying a summary judgment motion. Powers v. Dole, 607 F. Supp. 841, 844 (N.D. Ill. 1984).
Title VII provides a remedy for conduct having "the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Dey v. Colt Construction & Development Company, 28 F.3d 1446, 1453 (7th Cir. 1994).
When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.
Id. (quoting Harris v. Forklift Systems, Inc., 126 L. Ed. 2d 295, U.S. , , 114 S. Ct. 367, 370 (1993)). Courts must determine whether an environment is "hostile" or "abusive" by looking at all the circumstances. Harris v. Forklift Systems, Inc., supra, 114 S. Ct. at 371. Relevant factors include the frequency of the discriminatory conduct; the severity of the conduct; whether the conduct is physically threatening or humiliating or is merely an offensive utterance; and whether the conduct unreasonably interferes with an employee's work performance. Id. No single factor is required. Id.
This Court is required to evaluate the relevant factors from both an objective and subjective viewpoint:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.
Id.; Dey v. Colt Construction & Development Co., supra, 28 F.3d at 1454. Therefore, I will consider the actual effect of Mr. Mackin's conduct on Ms. Dellert as well as the effect similar conduct would have had on a reasonable person in Ms. Dellert's position. See Dey v. Colt Construction & Development Co., supra, 28 F.3d at 1454.
Ms. Dellert need not show that a campaign of harassment interfered with her work performance in order to establish a violation of Title VII. Id. at 1455; Saxton v. American Telephone and Telegraph Company, 10 F.3d 526, 534-35 n.l4 (7th Cir. 1993). The inquiry under Title VII "is not whether work has been impaired, but whether working conditions have been discriminatorily altered." Id. at 1455 (quoting Harris v. Forklift Systems, Inc., supra, 114 S. Ct. at 372 (Scalia, J. concurring)). The Seventh Circuit has approvingly quoted the Federal Circuit's observation that
[the fact that] women who are the objects of discriminatory behavior because of their sex are able to maintain satisfactory job performance is not grounds for denigrating their concerns. The criterion is not what a reasonable woman employee is capable of enduring, but whether the offensive acts alter the conditions of employment.