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DELLERT v. TOTAL VISION

February 7, 1995

JILL M. DELLERT, Plaintiff,
v.
TOTAL VISION, INC., d/b/a OPTICA, and TONY MACKIN, individually, Defendants.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Defendants, Total Vision, Inc., d/b/a Optica ("TVI") and Tony Mackin ("Mr. Mackin"), have filed a motion pursuant to Federal Rule of Civil Procedure 56 requesting that this Court enter summary judgment in their favor and against plaintiff, Jill M. Dellert ("Ms. Dellert") on certain claims in Ms. Dellert's complaint. For the reasons stated below, defendants' summary judgment motion is granted.

 Undisputed Facts1

 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. *fn2"

 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 ...


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