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JANSEN v. PACKAGING CORP. OF AMERICA

August 21, 1995

ALICE JANSEN, Plaintiff,
v.
PACKAGING CORPORATION OF AMERICA, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Alice Jansen ("Jansen") brings this three-count action against her employer Packaging Corporation of America ("Packaging"). Count I asserts that Jansen was the victim of sexual discrimination by her supervisor Al Antoni ("Antoni") in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17 *fn1" ), while Count II states that Packaging retaliated against her (in further violation of Title VII) after she had complained to Packaging about Antoni's conduct and Count III sets out her supplemental state law claim for intentional infliction of emotional distress.

 Facts *fn3"

 Packaging is a Delaware corporation with its headquarters in Evanston, Illinois (D. 12(m) P1). It manufactures paper products, corrugated boxes, aluminum and plastic containers and related products (id.).

 On August 2, 1991 Packaging hired Jansen as the secretary for the Tooling Services department of its Wheeling manufacturing facility (id. P3). Jansen's responsibilities included the maintenance and filing of blueprints, maintenance of department files, data entry and typing correspondence for individuals in the department (id. P4). Jansen reported to Tooling Services manager Antoni (id. P5).

 On January 19, 1993 Jansen reported to Human Resources Director Paul Migala ("Migala") that Antoni had made unwelcome sexual comments to her (id. P8). *fn4" Migala reported Jansen's allegations to Hank Weil ("Weil"), the Director of Operations at the Wheeling facility (id. P9) and Antoni's immediate supervisor (P. 12(n)(3)(b) P4). Both Migala and Weil met with Jansen that same day to discuss her claims of sexual harassment (D. 12(m) P10). Jansen reported the following misconduct:

 
1. Before October 1991: Between once a week and once every two weeks Antoni would ask her what she thought about "quickies" and would pat his crotch (Jansen Dep. 63-64). She did not document those comments because she thought Antoni would "lay off" (id. 65, 451). Antoni continued to make the comments throughout Jansen's tenure at Packaging (id. 73).
 
2. October 1991: Antoni said for the first time that he thought Jansen and he would be great in bed and that the affair would be strictly between them (id. 61-62, 65; id. Ex. 4). Antoni made that comment in his office (id. 62).
 
3. November 1991: Antoni suggested that he and Jansen "get it over" (id. Ex. 4) and asked "why fight?", saying that "it would be great" (id. Ex. 4). Antoni also made those comments in his office (id. 67).
 
4. December 1991: Antoni interposed himself between a kneeling Jansen and a refrigerator and requested oral sex: "You are just in the perfect position--don't worry the door will hide us" (id. Ex. 4). Antoni and Jansen were alone in the tool room when he made that comment (id. 70).
 
5. Between December 1991 and March 1992: Antoni would occasionally ask if Jansen's boyfriend was satisfying her needs--if not, Antoni suggested that he might do so (id. 72). Antoni said that a total of "three, four, five times" (id.), but Jansen did not record those occurrences in her notes (id. Ex. 4). Jansen suggested that Stu Bailey ("Bailey") was a witness to some of those comments (id. 72, 124).
 
6. March 1992: Antoni suggested that he and Jansen "do a quickie," noting that " Vicki" *fn5" had done so in the past (id. Ex. 4). Antoni made that suggestion in his office (id. 71).
 
7. June 1992: Antoni walked up behind Jansen as the latter was on all fours searching for a lost pen under her desk and suggested that they do a quickie as long as she was down there (id. Ex. 4).
 
8. December 1992: Antoni stated that Jansen "probably gave him a woody" though it is unclear to whom "him" referred (see id. 76 (Antoni); id. Ex. 4 (unclear)). Jansen said that Bailey was again present for the comment (id. 76, 124).
 
9. January 15, 1993: Antoni commented that he preferred Jansen in a miniskirt (id. Ex. 9, Jansen's Equal Employment Opportunity Commission ("EEOC") Complaint). That was the last instance of sexual harassment by Antoni (id. 143; id. Ex. 9).

 Jansen also cited some instances of physical contact. Antoni would "run his finger right above [her] bra line or on [her] bra line, and he would cross the back of it" as often as "once a month, if not a little more" (id. 77-80, 394).

 At the January 19 meeting Migala and Weil told Jansen that they would investigate her claims (P. 12(n)(3)(b) P26). About six weeks later (on March 1, 1993) Weil, Migala and Packaging's Manager of Corporate Equal Employment Opportunity Andrew Staub ("Staub") (id. P6) met with Jansen and told her that although they had been unable to corroborate her complaints (D. 12(m) P34), Weil had counseled Antoni about Packaging's anti-harassment policy and he had promised not to engage in any improper conduct (id. P35). *fn6" Jansen was also given a memorandum outlining Packaging's response to her complaint and was instructed that she should inform management if the problems persisted (id. PP36-37). One of the Packaging people did tell Jansen at the March 1 meeting that the investigation had uncovered some minor suggestions of behavior by her that was not in line with Packaging's sexual harassment policy (P. 12(n)(3)(b) P103). But an added indication of Packaging's response came when, either at the time of Jansen's initial complaint or not long thereafter, Packaging offered her the opportunity to take an open secretary position at the Northbrook office (and thus away from Antoni) that would have resulted in an increase in her pay (D. 12(m) P32).

 Less than a week before the March 1 meeting (on February 26, 1993) Jansen had filed a charge of discrimination with EEOC alleging sex discrimination and retaliation (D. 12(m) P60). Jansen then requested and was granted a leave of absence from March 18, 1993 through May 17, 1993 (id. P49). On May 6, 1993 Packaging terminated Antoni's employment (id. P48), stating the reason as "conflicts of interest" (id.).

 On November 29, 1993 EEOC issued a Notice of Right to Sue. Jansen then filed this lawsuit on January 26, 1994, while she was on her third medical leave from Packaging (P. 12(n)(3)(b) P125).

 Sexual Harassment

 Title VII's prohibition against sex discrimination includes a ban on sexual harassment ( Harris v. Forklift Sys. Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 370 (1993); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Sex discrimination of that type occurs either (1) where specific benefits of employment are conditioned on sexual demands ("quid pro quo theory") (Meritor, id. at 65; Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir. 1990)) or (2) where an employer's conduct creates a work environment that is hostile or abusive to women ("hostile work environment theory") ( Harris, 114 S. Ct. at 370). Though Jansen claims that she was a victim of both forms of discrimination, neither claimed approach survives Packaging's motion for summary judgment.

 Quid Pro Quo Theory

 In substantive terms Dockter, 913 F.2d at 461, citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir. 1987) defines quid pro quo harassment this way:

 
This type of sexual harassment describes situations in which submission to sexual demands is made a condition of tangible employment benefits.

 As a precondition to relief based on such harassment, however, adverse job consequences must result from the employee's refusal to submit to the requested conduct ( Gary v. Long, 59 F.3d 1391, 1995 U.S. App. LEXIS 19976, at *9-*12 (D.C. Cir.) and cases cited there).

 Jansen claims that when she would ask Antoni about the status of her several-months-overdue performance review--the review upon which her raises were based--Antoni would state while patting his crotch that he hadn't forgotten about her review (P. 12(n)(3)(a) Ex. 1 P2). But Jansen rejected Antoni's advances (Jansen Dep. 63), and she concedes that she suffered no harm as a result of her delayed review (id. 449-50). Furthermore, when Jansen did finally receive her performance review she was given an "MR" rating (id. 446), the same as her prior evaluation (id. Ex. 10). *fn7" Jansen also received a raise in pay after her evaluation (Weil Dep. 92-93), though she testified that she hadn't looked to see if her paycheck had increased (Jansen Dep. 447). And Jansen was aware of the "standard rule" that salary increases were made retroactive to the proper due date of her evaluation (id. 447; Weil Dep. 92-93).

 As Gary, 59 F.3d 1391, 1995 U.S. App. LEXIS 19976, at *11 has put it:

 
It takes more than saber rattling alone to impose quid pro quo liability on an employer.

 See also Catherine MacKinnon, Sexual Harassment of Working Women 32-33 (1979)). Here as in Gary the supervisor's threats of adverse consequences were never carried out and the employee was not harmed in any tangible economic way. Jansen's claim of quid pro quo harassment must therefore fail.

 Hostile Work Environment Theory

 To establish a hostile work environment claim, Jansen must eventually prove (though for now she need only raise a factual issue) that the conduct in question "had the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment" ( Meritor, 477 U.S. at 65, quoting 29 C.F.R. § 1604.11(a)(3) (1985)). *fn8" But Packaging essentially bypasses that issue by arguing that "even assuming that Antoni's comments were sufficiently pervasive and severe to constitute a hostile environment" (D. Mem. 1), it cannot be held liable because (1) it neither knew nor should have known about Jansen's harassment before she reported it and (2) it took appropriate remedial action once informed.

 Section 2000e(b) includes in the Title VII "employer" definition not only certain "person[s] engaged in an industry affecting commerce" but also "any agent of such person[s]." Citing that language, Meritor, 477 U.S. at 72 requires that this Court "look to agency principles" to resolve issues of employer liability for harassment by supervisors, though such principles "may not be transferable in all their particulars to Title VII" (id.). But there is surprisingly little guidance from Meritor or from our own Court of Appeals on how such principles are to be applied in the present context. Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431-32 (7th Cir. 1995) (citations to the other Circuits' decisions omitted) recently summed up the state of the law in this Circuit:

 
An employer is not strictly liable for sexual harassment of one worker by another unless, perhaps, the harassment takes the form, not here alleged, of an abuse of authority, as where a supervisor threatens to fire a subordinate if she refuses to have sex with him. In such cases, a number of courts treat the supervisor as the employer, whether correctly or not we need not decide. (Neither the Supreme Court nor our court has had occasion to decide the question.) In all other cases, it is clear, the ...

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