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ZORN v. HELENE CURTIS

September 29, 1995

Shelley A. Zorn, Plaintiff
v.
Helene Curtis, Inc. and William C. Decker, Defendants.



The opinion of the court was delivered by: CASTILLO

 Plaintiff Shelley Zorn ("Zorn") brings this action against the defendants, Helene Curtis, Inc. ("Helene Curtis"), and William C. Decker ("Decker"), alleging sexual discrimination, sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a) and 3(a) (1983 & Supp. 1995) (Counts I and II). *fn1" Invoking the Court's supplemental jurisdiction, Zorn also asserts the state law claim of intentional infliction of emotional distress (Count III). Helene Curtis and Decker move for summary judgment on all counts. The defendants' motion for summary judgment is presently before the Court.

 I. BACKGROUND

 The following undisputed facts are gleaned from the parties' respective Local General Rule 12 statements of material facts and accompanying exhibits. Unfortunately, this case presents an example of the problems that arise when parties fail to properly comply with Local Rule 12. See Flaherty v. Gas Research Inst., 31 F.3d 451, 453 (7th Cir. 1994) (noting that recent cases exhibit problems with adherence to the requirements of Local Rule 12). As such, a few words about Local General Rule 12 are warranted.

 Pursuant to Local Rule 12(M), the defendants flied a brief statement of undisputed facts supported by citations to depositions, transcripts of which were supplied to the Court. *fn2" In response, the plaintiff filed, in accordance with Local Rule 12(N)(3)(b), a response to the defendant's statement *fn3" as well as a statement of "additional facts that require the denial of summary judgment" *fn4" (the defendant subsequently filed a corresponding response). *fn5" However, in her 12(N) statement, the plaintiff cited to deposition testimony but failed to attach deposition transcripts--pages of which the Court has never seen. Thus, the Court is unable to verify the veracity of the evidence referred to by the plaintiff.

 Equally problematic is the fact that, in a number of instances, the plaintiff disputed portions of the defendants' 12(M) statement but failed to provide any references for the Court. Local Rule 12(N) requires "specific references to affidavits, *fn6" parts of the record, and other supporting materials" that allegedly establish a factual dispute. The Court is not obligated to scour the record in search of a factual dispute. Waldridge v. American Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994). The mere denial of a particular fact without specific references to supporting material that allegedly establish a factual dispute is insufficient; and, where a factual assertion is met with such a naked denial the fact may be deemed admitted. Flaherty, 31 F.3d at 453. The Court may adopt and strictly enforce the local rules, deeming all factual allegations not properly controverted as being admitted. Id; Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993), cert. denied, 510 U.S. 1121, 127 L. Ed. 2d 393, 114 S. Ct. 1075 (1994). The Court shall do so in this case. This case--with 14 voluminous depositions; a 38-page, 169 paragraph affidavit; a 5-page, 23 paragraph 12(M) statement; a 37-page, 158 paragraph statement of additional facts; and a 24-page, 37 paragraph complaint (not to mention all the accompanying answers and responses)--aptly illustrates the need for rules such as Local General Rule 12 that are designed to streamline the resolution of summary judgment, in part by having the parties highlight the relevant evidence. See Waldridge, 24 F.3d at 922-23 (discussing the purposes of Local Rule 12 and other similar rules from other districts). Therefore, in those instances where Zorn does not adduce evidence to properly controvert Helene Curtis' well-supported factual assertions, the facts averred will be admitted. That said, we turn now to the facts of this case.

 Other Helene Curtis employees who reported to Decker were Glenn Green, National Sales Manager for Attractions, and William Baldwin, Marketing Manager for Attractions. Def.'s Facts P 5. Other people working for Helene Curtis during the time period relevant to this case include: Ted Niess, a Regional Manager; James Marino, President of Helene Curtis' Professional Division; Andy Biazis, National Sales Manager for Helene Curtis' ISO division; William Davis, a Regional Sales Manager with Attractions; and Tom Ridgeway, a General Manager with Helene Curtis. Pl.'s Add'l Facts P P 6-10, 85. Peter Franelli ("Xenon"), an independent contractor, demonstrated the use of Attractions' products at various choreographed shows. Def's Facts P 19. *fn7"

 During her tenure with Helene Curtis, Zorn received two performance reviews: in July, 1991, she was given a 4 out of 5 (above average), and in July, 1992 she received a 3 out of 5 (average). Id. at P 6. During this same time period, Green and Baldwin were rated comparably--Green received ratings of 3 and 4 while Baldwin received ratings of 3 and 3. Id. at P 7. Zorn's salary was increased each time her performance was reviewed, and she maintained the same title and grade level throughout her employment. Id. at P 8. *fn8"

 The Attractions division of Helene Curtis struggled financially. Id. at P 9; Pl.'s Add'l Facts P 111. In February, 1992, the Attractions division was downsized, and jobs were eliminated in Zorn's division as well as in Green's division. Zorn Dep. at 166-170. Subsequently, in April or May 1992, Zorn began reporting to Green instead of Decker. Zorn Dep. at 203. It was explained to Zorn that the Attractions department was being reorganized, which included having her report directly to sales (Green) rather than directly to Decker. Id. Zorn's salary was not decreased, and her job title of national sales manager remained the same. Zorn Dep. at 194. *fn9" This reorganization did, however, mean an increase in job responsibilities for Zorn, as Zorn assumed responsibility for coordinating Attractions' shows. *fn10" Def.'s Facts P 11; Zorn Dep. at 174.

 Zorn charges that throughout her tenure at Helene Curtis she was discriminated against because of her gender and was forced to work in a hostile work environment replete with offensive sexual comments and conduct. Zorn Aff. P P 14, 15. According to Zorn, the hostile work environment was permitted, encouraged and often created by Marino, Decker, Baldwin and Green. Pl.'s Add'l Facts P 15. In addition, Zorn charges that much of the conduct was designed to force her to quit. Compl. P 26; Pl.'s Add'l Facts P P 88, 130, 134. Zorn claims that the discriminatory treatment and the sexual harassment to which she was constantly subjected created unbearable stress, causing her to suffer a nervous and mental breakdown in late August, 1992. Pl.'s Facts P 143. She also lost sleep, lost weight and had trouble eating. Id. P 99. Her relationship with her husband soured, leading to a separation. Id. P 154. Zorn charges that she continues to suffer from severe depression, sleeplessness, anxiety and moodiness. Id. P 153. As a result, she cannot work, has trouble concentrating, and lost all credibility in the hair care industry. Id. P 153, 155. There is no dispute that Zorn developed suicidal ideations and was diagnosed as suffering from severe depression. Def.'s Resp. Add'l Facts P P 139-142, 147, 150. Zorn claims that the discriminatory and harassing environment caused her mental breakdown, forcing her out of work involuntarily--in other words, she claims that she was constructively discharged. Id. P 156.

 Zorn contends that a litany of continuous offensive remarks and discriminatory treatment pervaded the work place at Helene Curtis throughout her tenure. As examples of the hostile environment, Zorn claims that the following incidents, among others, occurred: (1) during a cocktail party where an important distributor was present, Xenon brought Zorn to the front of the room, pointed to Zorn and said "look at this one, she has got legs," Zorn Dep. at 854; (2) at business meetings and dinners, Decker, Baldwin, and Green discussed sex and the female anatomy of the women present and women in general, Pl.'s Add'l Facts P 15; (3) Decker frequently grabbed his crotch in front of Zorn, Id. P 27; (4) Decker, Green and Baldwin constantly commented on the female anatomy, female weight, and how a woman filled out her dress or blouse, Pl.'s Facts P 28; (5) Decker, Green, Baldwin and Niess used profanity and referred to women as "sluts" or "bitches," Pl.'s Facts P P 29, 30; (6) Green made comments about Zorn's chest size, including once at a trade show in Jackson, Mississippi, when Zorn was wearing a bathing suit with a robe over it, Pl.'s Facts P P 31, 33; (7) in the presence of Decker, Baldwin, Green and other employees, Niess showed Zorn a page of a Victoria's Secret catalog featuring a model in provocative lingerie and told Zorn "I can picture you in that," Zorn Dep. at 746-47; (8) in Zorn's presence, Green and Baldwin commented on the chest sizes of various female employees, discussed whether a certain female employee was wearing a "bra" and would discuss what it would be like to have sex with various female employees, Pl.'s Add'l Facts P P 34-35; (9) Decker discussed the sex life of another female employee with Zorn, Id. P 36; (10) in 1990, as they were walking in Chicago, Baldwin commented on the size of Zorn's buttocks and "girth," Zorn Dep. at 744; (11) at a meeting in Las Vegas in 1991, Xenon asked Zorn "do you spread your legs for anyone other than your husband?" Pl.'s Add'l Facts P 40; (12) Decker, Baldwin, Xenon and Niess made comments about Zorn's attire, hairstyle, and femininity, telling her what she should wear, how she should cut her hair, and that she should act more feminine and look sexier, Id. P P 41, 42, 44, 60, 61, 62; (13) Decker would yell at Zorn for not being feminine enough or for being too matronly, Id. P 47; (14) Zorn was told that if she were a male employee she would be complemented, but because she was a female she was called a "bitch," Id. P 43; Zorn Dep. at 136; (15) Marino gave a speech to all middle and upper level management personnel at Helene Curtis, including Zorn, in which he said that all management level women with Helene Curtis should wear their hair in a perm, singling out one particular employee as an example, Pl.'s Add'l Facts P 63; (16) Decker gave Zorn tubes of hair coloring that he wanted her to use, Pl.'s Add'l Facts P 61; (17) Decker winked at Zorn (the winking occurred less than ten times between July 1990 and April 1992), Def.'s Resp. Add'l Facts at P 45; (18) Decker, Baldwin and Green told Zorn to wear a shorter hemline on her skirts and dresses and, when she did so, Decker commented: "We are finally seeing some leg," Pl.'s Add'l Facts P 65; (19) Xenon would leave Zorn voice mail messages telling her to get a new personality and calling her a "female bitch," Id. P P 75, 77; and (20) at a 1991 meeting in Las Vegas, Decker told Zorn "I know for a fact that you don't look like that when you wake up in the morning," Pl.'s Add'l Facts P 39.

 In addition to her complaints about the sexual overtures that permeated the workplace, Zorn charges that she was treated differently and less favorably than male employees in other respects. For example, (1) Decker frequently yelled at Zorn, did not speak civilly to her and would berate her when she reported business problems, Pl.'s Add'l Facts P P 47, 48, 49, 80; (2) Decker would not allow Zorn to attend important business meetings, other business functions, and many work related social events including a trade show in Las Vegas in August, 1992, at which new distributors were present, Id. P P 70, 78, 86, 105-06, 108-09, 131; (3) Zorn was instructed to arrive early in order to save desirable tables for Decker at a trade show in August, 1992, Id. P 107; (4) at a Las Vegas meeting, Zorn was told to check the men into the hotel and to clean up after every meeting session; Id. P 110; (5) Decker would repeatedly ask Zorn to sit or stand next to him at business functions so that they could be close, Id. P P 55, 58; (6) Decker gave Zorn unbearable work loads, often without giving her any training or assistance, Id. P P 71, 74, 96; (7) in March, 1992, at a show in Oak Brook, Baldwin and Decker went off for lunch, leaving Zorn to work at the booth by herself, Id. P 81; (8) Zorn had to give a detailed accounting of her time whenever she arrived late or left early while Baldwin and Green were never even criticized for arriving late or leaving early, Id. P 92; (9) in 1992, Decker told Zorn that she had to clean up the supply room, which was a janitorial function, despite the fact that Zorn held a management level position, Id. P 98; (10) Zorn asked Decker why he treated her differently and why he humiliated her only to be told that she needed to be more feminine and show more emotion, Id. P 129; (11) Zorn was not provided information presented at regional sales meetings, Id. P 127, 131; (12) on a business flight to Phoenix in August, 1992, Decker, Baldwin and Green flew in first class while Zorn was seated in coach, Id. P 123; (13) in July, 1992, Green gave Zorn an employee review of 3 (average) and said, "Shelly, if I were you I would quit," Zorn Dep. at 851; Pl's Add'l Facts P 102; (14) and, in what Zorn characterized as "the final straw," Zorn was threatened with the loss of her job and offered no assistance (despite the fact that she had been awake for 24 hours doing work for Helene Curtis) when a cargo shipment consisting of five containers weighing over 500 pounds each that was supposed to arrive at a trade show in Phoenix in August, 1992, was misdirected by the carrier to Los Angeles, Pl.'s Add'l Facts P P 133-36.

 Amidst all these alleged incidents by Helen Curtis, Zorn admits that she also at times engaged in inappropriate behavior. For instance, she wrote a note to Baldwin that said "roses are red, violets are blue, you're 35 and a real stud too." Pl.'s Facts P 20. At a management meeting that ran from May 31 through June 2, 1992, Zorn kissed the shirt collar of Steve Smith, vice president of Helene Curtis' Professional Division, leaving a lipstick mark. Id. P 21. At a company party, Zorn passed raspberries and whipped cream from her mouth to the mouth of Pat Ratcliffe, another Helene Curtis employee. Id. P 22. And at a meeting in May, 1992, in what Zorn characterizes as an attempt "to be one of the boys," she touched Bill Larkin, an Attractions regional sales manager, near the crotch area of his pants (it is disputed as to whether she actually grabbed his genitals or not). Id. P 17. Zorn claims that she was slightly intoxicated at this meeting. Id.

 Zorn claims that she complained about the unfavorable situation to Anna Marie Buchman (a private psychologist not associated with Helene Curtis), Ridgeway and Decker. Pl.'s Add'l Facts P P 83-85, 87. Zorn charges that as a direct result of these complaints she was demoted, Pl.'s Add'l Facts P 87, and Baldwin, Green and Decker began a campaign designed to make life for her intolerable at Helene Curtis. Id. P 88. This campaign consisted of, among other things, harassing memos falsely accusing Zorn of tardiness, telling Zorn that she should quit, falsely accusing her of missing work deadlines, and criticizing her management technique and her reports. Id.

 II. SUMMARY JUDGMENT STANDARDS

 Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Materiality *fn11" is determined by assessing whether the fact in dispute, if proven, would satisfy a legal element under the theory alleged or otherwise affect the outcome of the case. Id. at 247. The Court must view all the evidence in the light most favorable to the nonmoving party, Valley Liquors, Inc. v. Renfield Importers., Ltd., 822 F.2d 656, 659 (7th Cir.), cert. denied, 484 U.S. 977, 98 L. Ed. 2d 486, 108 S. Ct. 488 (1987), and draw all inferences in the nonmovant's favor. Santiago v. Lane, 894 F.2d 218, 221 (7th Cir. 1990). However, if the evidence is merely colorable, or is not significantly probative or merely raises "some metaphysical doubt as to the material facts," summary judgement may be granted. Liberty Lobby, 477 U.S. at 249-50; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Flip Side Prods., Inc. v. Jam Prods., Ltd., 843 F.2d 1024, 1032 (7th Cir.), cert. denied, 488 U.S. 909, 102 L. Ed. 2d 249, 109 S. Ct. 261 (1988). In making its determination, the Court's sole function is to determine "whether there is any material dispute of fact that requires a trial." Waldridge v. American Hoechst Corp., 24 F.3d 918 (7th Cir. 1994). Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255. In an employment discrimination suit, where credibility and intent are crucial issues, these standards are applied with added rigor. Courtney v. Biosound, 42 F.3d 414, 418 (7th Cir. 1994).

 III. ANALYSIS

 A. Title VII Standards

 1. Sexual Discrimination

 Zorn's ultimate burden with respect to her Title VII claim for sex discrimination is to establish that Helene Curtis intentionally discriminated against her on the basis of her gender. Zorn may satisfy this burden in one of two ways: (1) she may adduce direct evidence of discrimination, or (2) she may present circumstantial evidence of discrimination, resorting to the indirect, burden-shifting method of proof articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Zorn has not presented any direct evidence of discrimination, and, therefore, must resort to the burden-shifting method of proof.

 Under the burden-shifting approach, the plaintiff may establish a prima facie case of discrimination by demonstrating the following four points: (1) she is a member of a protected class; (2) she is eligible for the position in question; (3) she suffered an adverse employment action; and (4) the employer treated others similarly situated more favorably. McDonnell Douglas, 411 U.S. at 802; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Heerdink v. Amoco Oil Co., 919 F.2d 1256, 1259 (7th Cir. 1990), cert. denied, 501 U.S. 1217, 115 L. Ed. 2d 996, 111 S. Ct. 2826 (1991). The plaintiff's initial burden in satisfying "these four prongs present[s] a low hurdle . . . ." Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994). If the plaintiff succeeds in making a prima facie showing of discrimination, a rebuttable presumption of discrimination arises and the burden shifts to the defendant to articulate a legitimate, nondiscriminatory justification for its action. Burdine, 450 U.S. at 254; Lenoir v. Roll Coater, Inc., 13 F.3d 1130, 1132 (7th Cir. 1994). If the defendant articulates such a justification, the burden shifts back to the plaintiff to prove that the proffered reasons are a pretext. Burdine, 450 U.S. at 256. In other words, the plaintiff must prove that the offered reason is not the true reason for the employment action. Id. Pretext may be shown by establishing one of the following: (1) the defendant's explanation had no basis in fact, or (2) the explanation was not the "real" reason, or (3) the reason stated was insufficient to warrant the adverse employment action. Hughes, 20 F.3d at 746. The plaintiff always retains the ultimate burden that she was the victim of intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2747 (1993).

 2. Sexual Harassment

 The Supreme Court has held that Title VII is not limited to economic discrimination, but rather Title VII "strike[s] at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). More recently, the Court has reaffirmed that sexual harassment in the workplace violates "Title VII's broad rule of workplace equality." Harris v. Forklift Sys., Inc. 510 U.S. 17, , 114 S. Ct. 367, 371, 126 L. Ed. 2d 295 (1993); see also Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439 (7th Cir. 1994). Allowing sexual harassment to be actionable under Title VII "protect[s] working women from the kind of male attentions that can make the workplace hellish for women." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995).

 The Supreme Court in Meritor made clear that two types of sexual harassment may be actionable under Title VII. 477 U.S. at 64-65. The first is where the sexual misconduct is "directly linked to the grant or denial of an economic quid pro quo." Id. at 65. Zorn has not advanced a quid pro quo theory, and the Court notes that there is nothing in the record that would support such a theory. The second type of actionable sexual harassment is where "the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or ...


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