The facts of this case are more egregious than the facts presented in Dey. In Dey, the plaintiff was unable to recall the specifics of much of the alleged harassment. 28 F.3d at 1449. The plaintiff was able to recall only five incidents in any detail: (1) in early 1983 or 1984, the defendant's vice president and general counsel referred to a female colleague as a "flat-chested cunt;" (2) after returning from a vacation in Phoenix in 1983, the same man suggested to the plaintiff that she did not get a tan because she spent the week on her back in bed; (3) one day between November 1982 and September 1983, the same man told the plaintiff that "he would eat [her] no matter how [she] smelled;" (4) in March or April 1985, while riding in an elevator, the same man unzipped and zipped his pants after asking the plaintiff to hold his papers; and (5) in September or October 1985, the same man said to someone on the telephone that "there is a girl in my office going down on me" as the plaintiff leaned down to place some documents on his floor. Dey, 28 F.3d at 1449-50. Aside from these five incidents, the plaintiff could not recall what was said or done. Id. at 1450. There was never any physical component to the alleged harassment as the plaintiff concedes that she was never touched in a sexually suggestive manner. Id. Based on these allegations, the court concluded that "there is sufficient evidence to corroborate [the plaintiff's] charge of ongoing conduct to require a trial on that issue." Id. at 1456. The court reasoned that the five comments were overtly sexual and most were directed specifically at the plaintiff, and that the five incidents were extremely offensive and could be considered as such by a reasonable person in the plaintiff's position. Id. The court was not troubled by the vagueness of most of the plaintiff's allegations, stating that whether the plaintiff's allegations are credible is a question for the jury. Id.
This Court finds that the present case paints a more egregious picture than that presented in Dey. In this case, the plaintiff complains of harassing comments made not by one man, but by at least four men--Decker, Green, Baldwin and Marino. In addition, the plaintiff recalls not five but at least 20 sexually offensive comments or acts. Clearly the allegations in this case are more serious and offensive than the allegations in Dey. Therefore, if believed by the jury, Zorn's assertions would be sufficient to establish a claim of sexual harassment under Seventh Circuit precedent.
Zorn must also show that a reasonable jury could find that Helene Curtis's response or lack thereof to the harassing behavior was negligent. Carr, 32 F.3d at 1012; Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990) (setting out the rule governing employer liability under Title VII). Helene Curtis argues that it was never given notice of the harassment, and, therefore, cannot be held liable. We disagree.
Employers are not strictly liable for the conduct of co-workers. Meritor, 477 U.S. at 72. An employer can only be liable if it knew or should have known of the employee's acts and failed to take appropriate corrective action. R.R. Donnelley, 42 F.3d at 446; Guess, 913 F.2d at 465. But in this case we are not dealing with co-worker harassment. A substantial portion of Zorn's allegations include harassment by and in the presence of Decker, her direct supervisor. Pl.'s Add'l Facts P 67. Decker was not only Zorn's supervisor, he was the General Manager of the entire Attractions line. Def.'s Resp. Add'l Facts P 3. In this position, Decker had the power to hire, and, in fact, was responsible for hiring Zorn. Decker Dep. at 20. Zorn also alleges that Marino made harassing comments. Marino was even higher on the corporate ladder than Decker--he was the President of the entire Professional Division. Pl.'s Add'l Facts P 6. In addition to Decker and Marino, Zorn implicates Green, the National Sales Manager of Attractions, and Baldwin, the Marketing Manager of Attractions. Moreover, Green served as Zorn's supervisor from April 1992, until she stopped working at Helene Curtis. Helene Curtis "is 'strictly liable for sexual harassment by supervisory personnel who have the power to hire, fire, or promote . . . .'" Volk v. Coler, 845 F.2d 1422, 1436 (7th Cir. 1985) (quoting Scott v. Sears, Roebuck & Co., 605 F. Supp. 1047, 1054-55 (N.D. Ill. 1985) (citations omitted), aff'd, 798 F.2d 210 (7th Cir. 1986)); see also Meritor, 477 U.S. at 78 (Marshall, J., concurring) ("Sexual harassment by a supervisor of an employee under his supervision, leading to a discriminatory work environment, should be imputed to the employer for Title VII purposes regardless of whether the employee gave 'notice' of the offense."). Cf. Horn v. Duke Homes, Div. of Windsor Mobile Homes, Inc, 755 F.2d 599, 603 (7th Cir. 1985) ("We hold that Title VII prohibits an employer, acting through one of its supervisory employees, from imposing sexual considerations as a condition of employment . . ." regardless of whether the employer had knowledge of the harassment.). Decker, Marino, Green, and Baldwin all served national, supervisory roles with Helene Curtis.
As such, Helene Curtis is strictly liable for their conduct.
Helene Curtis points to R.R. Donnelley and Saxton as cases supporting a notice requirement even when supervisory personnel are involved. Def.'s Reply Mem. at 8-10. Helene Curtis' reliance on these cases is misplaced. In R.R. Donnelley, the plaintiff complained of harassment by her supervisor and harassment by her co-workers. 42 F.3d at 445. In discussing the alleged supervisor harassment, the Court noted that "whether sexual harassment by a supervisor can be imputed to the employer corporation is governed by the principles of agency." Id. The Court never said one way or the other whether this meant that notice would be required, instead finding that the plaintiff's allegations of harassment by the supervisor were time-barred. Id. at 445-46. It was only in relation to harassment by co-employees that the Court discussed and imposed a notice requirement. Id. at 446. Helene Curtis' reliance on Saxton is also misplaced. The issue in Saxton was not whether the employer had knowledge of the supervisor's conduct, but rather whether the employer's remedial action was sufficient. 10 F.3d at 535-36. Simply put, a requirement of actual or constructive knowledge may be necessary before holding an employer liable where the plaintiff complains of harassment by a co-employee, but such a requirement with respect to harassment by supervisory employees finds no support in either precedent or policy. Horn, 755 F.2d at 604. Holding Helene Curtis strictly liable for harassment by supervisory employees recognizes that "sex discrimination can best be eradicated by enforcing a strict liability rule that ensures compensation for victims and creates an incentive for the employer to take the strongest possible affirmative measures to prevent the hiring and retention of sexist supervisors." Id. at 605.
Even if Helene Curtis is not strictly liable for the sexual harassment that Zorn complains of, the Court's review of the record in this case makes it apparent that the sexual harassment Zorn complains of reached a level at which it can be inferred that the supervisor must have been aware that a hostile work environment existed. See R.R. Donnelley, 42 F.3d at 447. Decker, the supervisor, witnessed much of the harassing behavior of which Zorn complains (that is, if he was not participating himself). In addition Zorn complained to her immediate supervisor and to another general manager within Helene Curtis, Tom Ridgeway. Pl.'s Add'l Facts P 83-85, 87. In this situation, we have no trouble concluding that the supervisor (Decker) must have been aware that a hostile work environment existed. That is enough to establish constructive knowledge on the part of Helene Curtis.
In its behalf, we do note that Helene Curtis denies most of Zorn's allegations, but summary judgment is not a paper trial. Waldridge, 24 F.3d at 920. In reviewing the motion, we must view all reasonable inferences in the plaintiff's favor, and, after having done so, we conclude that judgment as a matter of law is not appropriate at this juncture. Defendant's motion for summary judgment as to Zorn's sexual harassment claim is denied.
2. Count I: Sexual Discrimination19
We turn now to Zorn's allegations of sexual discrimination. At issue is whether Zorn has established a prima facie case for sexual discrimination. Helene Curtis argues that it is entitled to summary judgment due to Zorn's failure to establish that she suffered an adverse employment action (one of the requirements for Zorn to establish a prima facie case). We disagree.
a. Zorn's Alleged Demotion
In order to have an adverse employment action,
a materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, by a demotion evidenced a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.
Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993) (emphasis added).
Zorn charges that she was demoted in April, 1992, when she was told to report to Green instead of Decker, and when she was given lower prestige work on top of her customary job responsibilities. We do not agree that Zorn was ever demoted.
The April 1992 procedure change of which Zorn complains amounts to no more than an alteration of job duties. Crady, 993 F.2d at 136. The change in reporting procedures did not bring with it a decrease in pay or a decrease in the amount of responsibility given to Zorn. In fact, as Zorn admitted in her deposition, Zorn's salary was increased at every performance appraisal, Zorn Dep. at 194, and she was given increased responsibilities. Id. at 174-75. Further, Zorn's job title remained at all times "national education manager." Id. In short, Zorn has failed to present any evidence that would support the inference that she was demoted.
Even if we assume that Zorn was demoted, she still cannot succeed because Helene Curtis presented a legitimate, non-discriminatory reason for its actions. Burdine, 450 U.S. at 254 (once the plaintiff succeeds in establishing a prima facie case of discrimination, the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for its action). Helene Curtis stated that the reassignment of Zorn was based on legitimate business reasons. Def.'s Reply Add'l Facts P 72. Specifically, Helene Curtis states that the Attractions division was struggling financially, and, as a result, the department was reorganized. Def.'s Facts P P 9-10. As a result of this reorganization, Zorn took on additional responsibilities, lost some employees, and had to report directly to Green. Id. P P 10-11. Helene Curtis further states that Green also took on increased responsibilities, and Green also lost employees. Id. The financial difficulties eventually forced Helene Curtis to close down the Attractions line, terminating Green and Decker. Id. P 9.
In short, Helene Curtis states that it had a legitimate business reason for the change in Zorn's job responsibilities. At this point, the burden shifts back to Zorn. Zorn has not even attempted to establish that Helene Curtis' proffered reason was a pretext. As a result, even if we were to find that Zorn was demoted (which we do not), Helene Curtis supplied a viable, nondiscriminatory reason for its actions.
b. Zorn's Constructive Discharge
Zorn also asserts that she suffered an adverse employment action because she was constructively discharged by Helene Curtis. Pl.'s Add'l Facts P 156; Pl.'s Mem. in Opp'n at 36. Helene Curtis argues that summary judgment should be granted as to this allegation because the constructive discharge claim was not raised in Zorn's EEOC complaint.
We disagree. A Title VII plaintiff must file a timely charge with the EEOC before commencing a lawsuit. 42 U.S.C. § 2000e-5(e); Alexander v. Gardner-Denver Co., 415 U.S. at 47. Allegations not included in the EEOC charge may not be asserted in a Title VII complaint. Kirk v. Federal Property Management Corp., 22 F.3d 135, 139 (7th Cir. 1994); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993). This is not to say that the Title VII complaint must contain verbatim the same charges as were mentioned in the EEOC charge. A plaintiff may proceed on a Title VII claim if the claim is "like or reasonably related to the allegations of the charge and growing out of such allegations." Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d at 167. This standard is a liberal one. Babrocky, 773 F.2d at 864.
Zorn's constructive discharge claim was not specifically raised in her EEOC charge. The EEOC charge states that she collapsed and was hospitalized for depression and suicidal ideations on August 31, 1992; she was subjected to a systematic campaign of harassment; she was held to a higher standard; she was given unrealistic work demands; she was ignored at meetings; she was unfairly criticized and blamed for events beyond her control, and she was ordered to perform clerical tasks. These are some of the very elements that constitute Zorn's constructive discharge claim. Given the fact that Helene Curtis knew that Zorn never returned to work after being hospitalized for depression on August 31, 1992, and given the fact that many of the elements of Zorn's constructive discharge claim are set out in her EEOC claim, we find that the constructive discharge claim is sufficiently "like or reasonably related to the allegations of the charge and growing out of such allegations." Jenkins, 538 F.2d at 167.
An employer constructively discharges an employee if it makes the employee's working conditions so intolerable that the employee is forced to resign. Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 314 (7th Cir. 1986), cert. denied, 479 U.S. 1092, 94 L. Ed. 2d 160, 107 S. Ct. 1304 (1987). However, "to be actionable under Title VII the work conditions need to be more than intolerable--they need to be intolerable in a discriminatory way." Chambers, 17 F.3d at 1005 (emphasis added). In order to establish a constructive discharge claim, the employee must establish that "a reasonable employee would have felt compelled to resign under the circumstances of the case." Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989). In addition, the employee must seek legal redress while remaining in his or her job unless faced with an aggravated situation beyond ordinary discrimination. Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 677 (7th Cir. 1993).
Helene Curtis argues that Zorn cannot establish that she was constructively discharged. We disagree. Although Zorn has not clearly set out her constructive discharge claim, after reviewing the record in this case, this Court reads Zorn's constructive discharge claim as alleging that the constant sexually offensive behavior, and the discriminatory treatment she endured made the workplace discriminatorily intolerable, forcing her to involuntarily stop working.
In its defense, Helene Curtis has offered a justifiable business reason for some of the additional work that Zorn was given, stating that Zorn, as well as Green, had to take on additional responsibilities as part of a reorganization plan. Def.'s Reply Add'l Facts P 72. But Helen Curtis has not offered any reason, let alone a legitimate, non-discriminatory reason, for why Zorn was left alone to do work by herself while her male colleagues would go out for lunch, Pl.'s Add'l Facts P 81; or why Zorn had to check the men into hotel rooms and clean up after meetings, Id. P 110; or why Zorn had to reserve tables for Decker at a trade show in August, 1992, Id. P 107; or why Zorn was instructed to clean out the supply room, Id. P 98; or why Zorn had to sit or stand next to Decker at business functions, Id. P P 55, 58; or why Green said to Zorn "Shelly, if I were you I would quit'" Zorn Dep. at 851; or why Decker threatened to fire Zorn when a shipment was misrouted by the cargo carrier. Pl.'s Add'l Facts P P 133-36. Similarly, Helene Curtis has not attempted to offer any legitimate business reason for the sexually offensive conduct and comments that Zorn endured and that we have previously discussed in some detail.
Helene Curtis, citing Landgraf v. USI Film Prods., 968 F.2d 427 (5th Cir. 1992), cert. granted in part, 113 S. Ct. 1250, 122 L. Ed. 2d 649 (1993), aff'd, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), argues that establishing a hostile work environment in violation of Title VII does not necessarily support a constructive discharge claim. It is true that in Landgraf, the Fifth Circuit upheld a decision in which sexual harassment was found to be sufficiently severe to establish a hostile work environment claim, but not severe enough to support a constructive discharge claim. 968 F.2d at 429-30 However, this Court does not read Landgraf as standing for the proposition that facts supporting a hostile work environment claim in violation of Title VII can never support a constructive discharge claim. Rather, in Landgraf, the Fifth Circuit determined that the district court did not err when "after hearing all the testimony in this case, [the court] concluded that Landgraf resigned for reasons unrelated to harassment." Id. at 430 (emphasis added). In addition, the court found that the sexual harassment was not severe enough that a reasonable person would have felt compelled to resign--a conclusion that was strengthened by the fact that the defendant had taken actions to alleviate the problem. Id.
This case presents a situation different from the one in Landgraf. In this case, Zorn asserts that the sexual harassment combined with discriminatory treatment caused her to suffer a mental and nervous breakdown, forcing her to resign. There is not even a hint that Zorn resigned for other reasons, nor is there any suggestion that Helene Curtis took any steps to alleviate the intolerable behavior. Therefore, this case is not controlled by Landgraf. Rather, in deciding this motion this Court relies on Rodgers v. Western-Southern Life Ins., Co., 12 F.3d at 668.
In Rodgers, the plaintiff's supervisor, who also hired the plaintiff, made insulting racial remarks, as well as many race-neutral epithets. 12 F.3d at 671. In addition to verbal abuse, the plaintiff's supervisor on one occasion dumped out the contents of the plaintiff's desk. Id. Despite the job-related stress resulting from the harsh treatment and racial language, the plaintiff continued to work for the defendant. Id. At one point, the plaintiff was given additional work demand that the plaintiff found to be unbearable. Id. at 672. When the plaintiff complained, his supervisor threatened to fire him. Id. Subsequently, the plaintiff resigned for health reasons. Id. After carefully reviewing the evidence in the case, the Seventh Circuit was "persuaded that [the] racist comments and taunts, though perhaps not the sole factor, contributed significantly to the stress condition that compelled [the plaintiff] to resign. . . ." Id. at 677. The court was not troubled by the fact that the plaintiff did not simply quit immediately after the stressful environment began, stating that: "the employee may quit 'cold turkey' or . . . 'may experience a prolonged period of turmoil.'" Id. (quoting Daniels v. Essex Group, Inc., 937 F.2d 1264, 1271 (7th Cir. 1991)). In discussing the plaintiff's constructive discharge claim, the court noted that an employee must seek legal redress while remaining on the job unless confronted with an aggravated situation. Id. Although the plaintiff in Rodgers never sought legal redress,
the fact that the insults generating the racially hostile environment flowed from the mouth of the supervisor--indeed, the highest ranking employee in the [plaintiff's] office--persuades us that [the plaintiff] encountered 'aggravated' discrimination. Under these circumstances, we agree [with the district court] that a reasonable employee would have felt compelled to resign.