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ELLERTH v. BURLINGTON INDUS.

January 18, 1996

KIMBERLY B. ELLERTH, Plaintiff,
v.
BURLINGTON INDUSTRIES, INC., Defendant.



The opinion of the court was delivered by: CASTILLO

 Plaintiff Kimberly B. Ellerth ("Ellerth") sues defendant Burlington Industries, Inc. ("Burlington") for sex discrimination and constructive discharge under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Ellerth alleges that while employed at Burlington she was inappropriately touched and sexually harassed by her superior, Theodore Slowik, subjecting her to a hostile work environment in violation of Title VII's prohibition against discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Ellerth also contends that Slowik's harassment of her resulted in her constructive discharge. Burlington's motion for summary judgment is presently before the Court. After careful review, the Court finds that there is no genuine issue of material fact and judgment should be entered for Burlington on both counts of Ellerth's complaint as a matter of law.

 RELEVANT FACTS

 As a merchandising assistant, Ellerth assisted Fitzgerald in her day to day activities. She also spoke with Slowik by phone approximately once per week. Additionally, Ellerth's position required occasional travel, generally for training-related purposes. Ellerth's immediate supervisor while she held this position was Fitzgerald. (Id. P 11). Fitzgerald reported directly to Slowik. (Pl.'s Facts P 11).

 In February and March of 1994, following interviews with Patrick Lawrence and Slowik, Ellerth received a promotion to the position of sales representative for the Ticking Division's Midwest territory. (Def.'s Facts P 12). Lawrence became Ellerth's immediate supervisor after that promotion. In turn, Lawrence reported to Slowik.

 Throughout her employment at Burlington, Ellerth saw Slowik when he came to Chicago, on average, for a day or two every month or two. (Id. P 17). In addition, Ellerth states that she saw Slowik when she traveled to New York, North Carolina and San Francisco for training, and that she spoke with Slowik approximately once a week. (Pl. Dep. at 49, 58, 93-94, 131, 215-216).

 Ellerth claims that Slowik's harassment of her began as early as her preemployment interview with him. Ellerth contends that during that interview, Slowik asked her if she was married, if she planned on having a family, and if she was "practicing" to have a family. Ellerth further alleges that Slowik stared at her in a sexual way such as staring at her chest for prolonged periods of time, and staring at her legs. Ellerth contends that the stares were constant throughout the entire interview and that the felt "humiliated" during the interview. (Def.'s Facts P 18). Notwithstanding this experience, after the interview, Ellerth sent a follow-up letter to Fitzgerald in which she wrote, "I appreciated the chance to meet with Mr. Slowik before he returned to New York. The insight that he gave me into the position only provided me with more incentive to take the job he offered."

 The next time Ellerth saw Slowik--the summer of 1993, when she travelled to New York for training--the harassment allegedly continued. (Def.'s Facts P 20). Ellerth was in New York for approximately five days. Although she could not recall the exact number of times she saw Slowik in New York, Ellerth testified that she had more than five conversations, most lasting about five minutes, but two that were longer (about an hour) in duration. The first of these two longer conversations took place in Slowik's office. Slowik allegedly told one off-colored joke at the end of that conversation. Ellerth does not remember the content of the joke. (Id. PP 22, 23; Ellerth Dep. at 57-66). Ellerth testified that there were "around four" incidents during her training trip to New York in which Slowik told off-colored, offensive jokes. (Id. P 23; Ellerth Dep. at 63, 65)

 The second extended conversation Ellerth had with Slowik in New York took place during a lunch meeting at a restaurant near Burlington's New York office in which Angelo Brenna, Burlington's vice president of international sales, was also present. The lunch lasted approximately one to one and a half hours during which time Ellerth claims Slowik told "well over ten," offensive jokes of a sexual nature. Although she could not recall the exact number of offensive jokes, Ellerth testified that they were frequent and constant. (Def.'s Facts P 24; Ellerth Dep. at 70-71). Ellerth also testified that during one of these jokes, Slowik reached over and rubbed her knee under the table. Ellerth pulled her leg away and said nothing to Slowik or Brenna; Ellerth assumed Brenna had not seen the rubbing. (Def.'s Facts P 24; Ellerth Dep. at 75-76). While walking back to the Burlington office after lunch, Ellerth was walking about three or four feet in front of Slowik and Brenna when Slowik allegedly commented, "you have got great legs, Kim. What do you think, Angelo?" (Id. P 25). Ellerth testified that, after that remark was made, she turned and looked at Slowik who was staring at her legs. (Ellerth Dep. at 81) Ellerth testified that when she returned to the office after lunch, she told two women, one named Marilyn and the other named Laura Peffal, that Slowik and Brenna had been "very loud and obnoxious and rude and very offensive at lunch." (Pl. Dep. at 82-83). Ellerth had no other interactions with Slowik in New York.

 Following the New York trip, Ellerth has no specific recollection of seeing or speaking with Slowik until approximately one month later when she traveled to Greensboro, North Carolina for additional training. *fn2" Ellerth was in North Carolina for one work week (i.e., Monday through Friday). (Def.'s Facts P 27). Ellerth first saw Slowik in North Carolina about three days after she arrived, when she had dinner with Slowik, a sales representative named Dan, and Dan's wife. Ellerth states that Slowik was loud and obnoxious during dinner and gave the waitress a hard time. Ellerth's deposition testimony regarding the nature of Slowik's offensive conduct vis-a-vis the waitress is indefinite at best. She testified that she did not recall how Slowik was giving the waitress a hard time. When first asked if he was giving the waitress a hard time "in a sexual way" or "making offensive sexual comments to her," Ellerth stated that she could not recall. (Ellerth Dep. at 103). Upon further inquiry, Ellerth responded that Slowik's comments were "probably" about the waitress' appearance because that is what Ellerth would find offensive. (Id.; see also id. at 117 ("I recall that I was very offended with what he said to the waitress, and I know the only way that I would be offended or embarrassed is if there was a situation where he was talking sexually offensive")).

 Upon returning to the hotel after dinner, Slowik invited Ellerth to accompany him to the hotel lounge. Ellerth accepted. Ellerth testified that, while in the lounge, Slowik commented about the female band members stating that they had nice breasts, nice legs and nice, skimpy outfits. (Def.'s Facts P 29). Ellerth further states that, regarding breasts, Slowik asked, "you are a little lacking in that area, aren't you Kim?" Ellerth did not reply to Slowik's comments and she claims that Slowik told her that she "ought to loosen up." (Id.). At the bar, Slowik allegedly engaged in prolonged looks at Ellerth's breasts and legs. Upon leaving the bar, Ellerth claims that Slowik stated, "You know, Kim, I could make your life very hard or very easy at Burlington." (Id.). Ellerth understood this comment to mean that she would have to have sex with Slowik to succeed at Burlington. (Ellerth Aff. P 22). Ellerth could not recall seeing Slowik again during her week in North Carolina, and believed that that evening was the only time she talked to him that week.

 The next specific incident in which Ellerth could recall seeing Slowik was at the company holiday party in December, 1993. Ellerth claims that Slowik approached her husband, patted him on the shoulder and said, "You are a lucky man to have a woman like that," referring to the plaintiff. (Ellerth Dep. at 148). In addition, plaintiff alleges that Slowik patted her rear as he walked past her during the party. (Def.'s Facts P 35).

 The next incident that Ellerth could specifically recall in which she saw Slowik was her promotion interview in March of 1994. *fn4" At this interview, Ellerth claims that Slowik agreed he had told others that she was "arrogant" because she was not "loose enough" for him, and that this gave him hesitations about promoting her. (Def.'s Facts P 36; Ellerth Dep. at 199). Ellerth also states that Slowik reached over and rubbed her knee during the interview, and when discussing the travel associated with the new position, Slowik asked, "isn't your husband going to miss you." (Def.'s Facts P 36). When he called to inform her that she had received the promotion, Slowik allegedly made a sexually inappropriate comment that caused Ellerth to cry. She could not recall the comment. *fn5" (Def.'s Facts P 37).

 Later that same month, plaintiff traveled to San Francisco for a bedding conference. Ellerth claims that she saw Slowik often but for the first three or four days Slowik ignored her. Ellerth believes that this was because she had not responded favorably to his harassment. (Pl. Dep. at 216, 244). However, on the last day of the conference, Slowik allegedly made a sexually inappropriate comment to Ellerth about her "ass." (Def.'s Facts P 38). Slowik allegedly was staring at Ellerth's "back end" when he made this comment. (Ellerth Dep. at 247). The incident caused Ellerth to run to the bathroom to cry.

 The foregoing incidents involve Ellerth's face-to-face interactions with Slowik. During her employment at Burlington, Ellerth spoke with Slowik by phone repeatedly; Ellerth claims that Slowik's harassment of her was a common feature of these phone conversations. The conversations were brief--usually Slowik would ask a work-related question and Ellerth would answer. Ellerth estimated that the frequency of these calls was approximately once per week. (Ellerth Dep. at 131, 163). Although Ellerth testified that Slowik did not tell vulgar jokes on the phone, she stated that "there were sexual innuendos on the phone, all phone conversations." (Id. at 132). As specific examples of Slowik's comments, Ellerth recalled being asked by Slowik, "How are those legs of yours, Kim?" Slowik also asked Ellerth if she was still practicing having a family with her husband. (Id. at 132-33). In a phone conversation that occurred in February or March of 1994, Slowik allegedly said to Ellerth that it "must be hard for a woman like you, Kim, to have a job like that -- a woman with great legs." (Id. at 172, 174). In a phone conversation that occurred in April of 1994, Slowik allegedly told Ellerth "a very offensive joke about blonds, a limo and sex." (Id. at 253). Although she could not recall the specifics of the joke during her deposition, Ellerth has submitted an affidavit along with her opposition to the instant motion for summary judgment in which she recounts the joke as follows: "What's the difference between a blonde and a limo? Not everyone's been in a limo." (Ellerth Aff. P 45). On another occasion, when Ellerth was talking to Slowik to get special permission to do something for a customer, Slowik said something along the lines of "I don't have time for you right now, Kim, unless you're telling me -- unless you want to tell me what you are wearing." Ellerth said she had to go and hung up. On a follow up call, again to get permission, Slowik told Ellerth that she did not have permission for the project and he then said something along the lines of "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier." (Id. at 256-58). These latter calls occurred in about May of 1994.

 Ellerth was aware throughout her employment that Burlington maintained a policy against sexual harassment. (Pl. Dep. at 358). She received a copy of Burlington's employee handbook and read the policy against sexual harassment in the handbook. (Id.; Def.'s Facts P 42). Ellerth chose not to inform her supervisors or anyone in authority regarding Slowik's conduct because her husband advised her not to say anything to anyone because it would jeopardize her job. (Pl.'s Facts P 43). Ellerth never informed Fitzgerald or Lawrence, her direct supervisors, about the alleged harassment while she was employed at Burlington. (Def.'s Facts PP 44, 45). Ellerth stated that she chose not to inform Lawrence because "it would be his duty as my supervisor to report any incidents of sexual harassment," thus putting her job in jeopardy. (Def.'s Facts P 45; Pl. Dep. at 357). Ellerth claims that she told several Burlington employees and one Burlington customer that she was being harassed by Slowik. *fn6" Ellerth admits that none of the employees were her superiors. (Pl.'s Facts P 46). Ellerth did complain to her husband and parents on numerous occasions that Slowik sexually harassed her from the beginning of her employment with Burlington. (Def.'s Facts P 47). On one occasion, after Slowik made an "embarrassing and humiliating" sexual innuendo, plaintiff claims that she told Slowik that what he said was inappropriate. (Rule 12(M) P 48; Pl. Dep. at 143-145).

 In May of 1994, approximately two months after Ellerth received her promotion, Lawrence and Donna Thibideau, Burlington's Customer Service manager received some complaints about Ellerth. (Pl.'s Facts P 14). Lawrence sent Ellerth a memorandum on May 22, 1994 regarding the complaints he had received. (Def.'s Facts P 15; Ellerth Dep., Ex. 2). On May 31, 1994, Ellerth left a message on Lawrence's answering machine informing him that she was quitting. She also faxed him a letter to the same effect. The letter received by Lawrence did not mention that plaintiff had been sexually harassed by Slowik. (Def.'s Facts P 16). Ellerth claims that the letter she transmitted to Lawrence did not refer to the sexual harassment because, on her husband's advice, she had redacted the sentences she had written regarding her harassment. (Pl.'s Facts P 16). (Rule 12(M) P 16). About three weeks later, in a letter dated June 21, 1994, Ellerth wrote to Lawrence, essentially stating that she had quit because she was being harassed by Slowik. (Pl.'s Ex. I).

 DISCUSSION

 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). The court must view all evidence in a 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, summary judgment may be granted. Liberty Lobby, 477 U.S. at 249-50; Flip Side Productions, Inc. v. Jam Productions, 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 determining whether a genuine issue exists, the court "must view the evidence presented through the prism of the substantive evidentiary burden." Liberty Lobby, 477 U.S. at 254. In making its determination, the court's sole function is to determine whether sufficient evidence exists to support a verdict in the nonmovant's favor. Credibility determinations, weighing evidence, and drawing reasonable inferences are jury functions, not those of a judge when deciding a motion for summary judgment. Liberty Lobby, 477 U.S. at 255. Finally, we note that mere conclusory assertions, unsupported by specific facts, made in affidavits opposing a motion for summary judgment, are not sufficient to defeat a proper motion for summary judgment. See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."); First Commodity Traders, Inc. v. Heinold Commodities, Inc., 766 F.2d 1007, 1011 (7th Cir. 1985) ("Conclusory statements in affidavits opposing a motion for summary judgment are not sufficient to raise a genuine issue of material fact").

 Hostile Environment Sexual Harassment

 Title VII prohibits "discrimination . . . against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). Title VII's prohibition against sex discrimination includes sexual harassment in the workplace. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Courts commonly distinguish between two types sexual harassment: quid pro quo harassment and hostile work environment harassment. Quid pro quo harassment occurs where the employer conditions tangible employment benefits on submission to sexual demands. See Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir. 1990). To establish harassment of the hostile work environment type, the plaintiff must establish that the challenged conduct "'has the purpose or effect of unreasonably interfering with [the] 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). Significantly, Meritor held that "for sexual harassment to be actionable, it must be sufficiently severe or pervasive a to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). As the Seventh Circuit recently noted:

 
To determine whether the plaintiff's work environment is hostile within the meaning of Title VII, we consider a variety of factors, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."

 Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993) (quoting Harris v. Forklift Sys. Inc., 126 L. Ed. 2d 295, 114 S. Ct. 367, 371 (1993)); see also Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994) (noting that "not all conduct that has sexual overtones can be characterized as the sort of sexual harassment that is forbidden by the statute. For the harassment to be actionable, it must be sufficiently severe or pervasive as to alter the conditions of the victim's employment and to create an abusive working atmosphere."); Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 708 (7th Cir. 1995) ("Isolated and innocuous incidents do not support a finding of sexual harassment."). The inquiry focuses on the totality of the circumstances and no single factor is required or determinative. Id. Finally, these factors are evaluated from both a subjective and objective viewpoint. That is, the actual effect of the conduct on the plaintiff is considered as is the likely impact on a reasonable person in the plaintiff's position. Id.; Doe, 42 F.3d at 444; Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454-57 (7th Cir. 1994).

 In the instant case, and for purposes of this motion only, Burlington does not dispute the occurrences of Slowik's harassing conduct as alleged by Ellerth. *fn7" Rather, Burlington advances several arguments as to why, as a matter of law, it can not be found liable for Slowik's conduct. First, Burlington contends that Ellerth's complaint is untimely as to most of the alleged conduct and that the remaining conduct does not amount to actionable sexual harassment because it is not sufficiently severe or pervasive. In this regard, Burlington contends that Ellerth cannot invoke the "continuing violation" doctrine to bring the untimely conduct within the ambit of her complaint. Burlington's second principal contention is that it cannot be held liable for Slowik's conduct because it did not know or have reason to know of Slowik's conduct. We address these arguments in turn below.

 1. Timeliness and the Continuing Violation Doctrine

 As Burlington correctly observes, in Illinois a complainant must file a charge of discrimination within three hundred days of the alleged harassment. Conduct occurring more than 300 days before the filing of a charge of discrimination cannot be the sole basis of a Title VII sexual harassment claim. Koelsch, 46 F.3d at 707. Ellerth filed her charge of discrimination on October 17, 1994; therefore, only conduct that took place after December 20, 1993 can serve as the basis for Ellerth's recovery under Title VII, unless the continuing violation doctrine applies. Under that theory, acts of discrimination that are otherwise time-barred may be actionable under certain limited circumstances. See, generally, Stewart v. CPC Int'l, Inc., 679 F.2d 117 (7th Cir. 1982); Selan v. Kiley, 969 F.2d 560 (7th Cir. 1992).

 This Court recently discussed the parameters of the continuing violation theory in Egan v. Palos Community Hosp., 889 F. Supp. 331, 334-337 (N.D. Ill. 1995). There, we noted that the Seventh Circuit has recognized three viable theories under which a plaintiff may successfully appeal to the continuing violation theory. See id. at 335. Only one of those theories, the "serial violation" or "pattern of ongoing discrimination" theory is relevant here, and we confine our discussion to that theory. The Seventh Circuit has described this theory as applying to:

 
cases in which the plaintiff charges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy. . . . In such cases the challenged practice is evidenced only by a series of discrete, allegedly discriminatory, acts. This brand of continuing violation has also been referred to as a "serial violation," Mack, 871 F.2d 179 at 183, and as a "pattern of ongoing discrimination." Santos v. Rush-Presbyterian-St. Luke's Med. Ctr., 641 F. Supp. 353, 357 (N.D. Ill. 1986).

 Selan, 969 F.2d at 565. In order to invoke this variant of the continuing violation doctrine, Ellerth must show that defendant's acts were "related closely enough to constitute a continuing violation" rather than constituting "merely discrete, isolated, and completed acts which must be regarded as individual violations." Id. (internal quotation marks omitted). As we summarized in Egan, the pertinent factors to consider in making this distinction are:

 
(1) subject matter--"Do the alleged acts involve the same type of discrimination tending to connect them in a continuing violation?" id.; (2) frequency--"Are the alleged acts recurring (e.g., a bi-weekly paycheck) or more in the nature of an isolated work assignment or employment decision?" id.; and, (3) degree of permanence--"Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights?" Id. Of these three factors, the third is the most significant. Id. As explained in Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1989):

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