Number 74 in Norridge, Illinois since June 1989 and still works there. Julie Rountree ("Rountree"), meanwhile, worked at Dominick's, also as a clerk, from December 1989 until February 1993. During her entire employment with Dominick's, she worked at Store Number 74.
Both women allege sexual harassment at the hands of Joseph Whetter ("Whetter"). He worked at Dominick's from November 1972 until May 1993, when he was terminated. From June 1989 through May 1993, Whetter was the Co-Manager at Store Number 74.
Sanfelice complains of "continuous and constant" sexually harassing conduct until she filed her EEOC charge in May 1993. Specifically, she alleges that Whetter committed the following acts: (1) on a number of occasions, he kissed her on the neck and mouth; (2) at least ten times he grabbed her buttocks, at times in the presence of others and other times while alone; (3) on multiple occasions, he grabbed her sides and tickled her; (4) he often whispered in her ear that she "had a nice ass," "smelled good," or "looked good"; and (5) on a number of occasions, he asked her to go out socially with him (including to dinner, a summer boat cruise, and after-work employee gatherings), all of which she refused. She never welcomed his conduct and often told him to stop it. On one occasion in 1993, after telling Whetter that she was "tired of you touching me, " he smiled, said "I thought you liked it," and walked out of the room in laughter. Sanfelice alleges that the conduct affected her job performance. Besides being upset at work, there were times when she could not concentrate on the customers. The manager of the deli department in which she worked took note of this. She also experienced migraine headaches when she went to work and had nightmares while at home. Her intimate relationship with her boyfriend (currently, her husband) also suffered. Finally, her doctor diagnosed her with post-traumatic stress disorder, caused by Whetter's sexual harassment.
Rountree makes similar allegations of harassing conduct by Whetter. It, too, was "continuous" while she worked at Dominick's until she finally quit her job in February 1993. Specifically, she alleges that Whetter committed the following acts: (1) on multiple occasions, he kissed her on the neck, face, and ear; (2) several times he touched, rubbed, and squeezed her buttocks; (3) he whispered in her ear a number of times that she "had a nice ass", "looked hot", "had a nice body", or "smelled good"; (4) he left her a number of notes, all of which said the same thing, "I love you Julie"; (5) on multiple occasions, he leaned and rubbed up against her; and (6) he invited her out on a date, which she rejected. She also told him to stop his conduct, but the actions continued until she left Dominick's. As a result of Whetter's conduct, she had nightmares and felt intimidated by males that she did not know, especially those in positions of power. In addition, her doctor diagnosed her with post-traumatic stress disorder, as a result of the alleged harassment.
Both Sanfelice and Rountree also allege that other Dominick's employees in a supervisory capacity to each of them had knowledge of Whetter's conduct either because they witnessed it or were made aware of it by one of the plaintiffs. Sanfelice points to four individuals that either knew or should have known about Whetter's actions. First, Sanfelice alleges that Frank Rubio, the deli manager while Sanfelice worked at Store Number 74, witnessed Whetter's harassing conduct and received a complaint about Whetter from Sanfelice. Rubio did nothing about it. Second, she alleges that Frank Lapi, also a manager of the deli department, had knowledge of Whetter's conduct. In one instance, Sanfelice came into the back room crying and said to Lapi "[Whetter] touched my ass again." Later, Lapi left two messages on the voice mail of Edwina Erlemann, a Dominick's Human Resources department representative, indicating a desire to discuss a problem at Store Number 74. Erlemann failed to respond to the messages. Sanfelice also alleges that she too attempted to contact Erlemann herself in 1993, even though she did not think she could trust Erlemann. This apparently was unsuccessful. Finally, Frank Lapi also told Charles Ragonese, Dominick's Area 4 District Manager, while he was present in Store Number 74, that he wanted to discuss an important matter with him regarding a problem at Store Number 74. Ragonese never responded to this request.
Rountree, meanwhile, points to three Dominick's employees that witnessed Whetter's conduct. First, Rountree alleges that Mike McHugh, the Store Manager while Whetter was Co-Manager, saw Whetter once kiss Rountree while she was working in the fish department. McHugh did not investigate the incident or report it to anyone. Second, Rountree claims that Tim Cashaw, the manager of the seafood department while Rountree worked part-time in that department, witnessed Whetter grab Rountree's buttocks on different occasions. Cashew did not tell anyone about this. Finally, Rountree alleges that Mario Calabrese, the produce manager while Rountree worked in the bulk department, saw notes from Whetter to Rountree saying "I love you Julie." Rountree complained to Calabrese about Whetter's conduct but Calabrese did nothing about it.
II. LEGAL STANDARD
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". FED. R. CIV. P. 56(c). When reviewing the record on summary judgment, this court must draw all reasonable inferences in the light most favorable to the nonmovant. Anderson v. Stauffer Chemical Co., 965 F.2d 397, 400 (7th Cir. 1992). To avert summary judgment, however, plaintiff must do more than raise "'some metaphysical doubt as to the material facts.'" Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (footnote omitted)). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
A. Sexual Harassment
The Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), made clear that two types of sexual harassment may be actionable under Title VII. The first is where the sexual misconduct is "directly linked to the grant or denial of an economic quid pro quo." Id. at 65, 106 S. Ct. at 2404-05. In their amended complaint, plaintiffs alleged that "tangible job benefits were conditioned on plaintiffs' acquiescence to offensive, sexually harassing conduct." Plaintiffs apparently have since abandoned the quid pro quo theory as they did not address it in their response to the defendant's motion. Furthermore, the court finds nothing in the record sufficient to support such a theory.
The second type of sexual harassment actionable under Title VII is where "the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Id. at 65, 106 S. Ct. at 2404-05. As the Seventh Circuit explained in Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994), there really are only two questions in a claim based on a "hostile work environment."
The first is whether the plaintiff was, because of her sex, subjected to such hostile, intimidating or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked; for Title VII is not directed against unpleasantness per se but only, so far as relates to this case, against discrimination in the conditions of employment. Harris v. Forklift Systems, Inc., supra, U.S. at , 114 S. Ct. 367, 371, 126 L. Ed. 2d 295; Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). The second question is whether, if so, the defendant's response of lack thereof to its employees' behavior was negligent. Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 535-36 (7th Cir. 1993); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320-21 (7th Cir. 1992); Guess v. Bethlehem Steel Corp., 913 F.2d 463 (7th Cir. 1990). It would be unrealistic to expect management to be aware of every impropriety committed by every low-level employee. But if it knows or should have known that some of its female employees is being harassed, yet it responds ineffectually, it is culpable.
Carr, 32 F.3d at 1009.
With respect to the first question above, courts have difficulty drawing the line between what is and what is not actionable sexual harassment. The Seventh Circuit recently explained it this way:
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405-06, 91 L. Ed. 2d 49 (1986); Harris v. Forklift Systems, Inc., U.S. , , 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993); Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1009-10 (7th Cir. 1994). On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. Meritor Savings Bank v. Vinson, supra, 477 U.S. at 61, 106 S. Ct. at 2402-03; Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir. 1986); Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983).