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RUSHING v. UNITED AIRLINES

March 27, 1996

LEON RUSHING, Plaintiff,
v.
UNITED AIRLINES, et al., Defendants.



The opinion of the court was delivered by: SHADUR

 Leon Rushing ("Rushing") has brought this action by reason of claimed sexual harassment on the part of Guy Montes ("Montes"), his supervisor at their joint employer United Airlines ("United"). Rushing asserts both a statutory claim under Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. §§ 2000e to 2000e-17) *fn1" and supplemental state law claims charging intentional infliction of emotional distress, negligence in training and supervision, and ratification.

 Defendants now move for summary judgment under Fed. R. Civ. P. ("Rule") 56. Both sides have complied substantially *fn2" with this District Court's General Rule ("GR") 12(M) and 12(N), which has been adopted to highlight the existence or nonexistence of any material factual disputes. At this point, then, the motion is fully briefed and ready for decision. For the reasons set out in this memorandum opinion and order, the motion is granted as to all counts except for Rushing's intentional-infliction-of-emotional-distress claim against Montes, which is dismissed without prejudice.

 Summary Judgment Standard

 Under familiar Rule 56 analysis, defendants have the burden of establishing both the lack of a genuine issue of material fact and their entitlement to summary judgment as a matter of law ( Celotex v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For those purposes this Court is called upon to draw inferences in the light most favorable to nonmovant Rushing, but it is "not required to draw every conceivable inference from the record--only those inferences that are reasonable" ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). What follows in the Facts section is a version of the facts drawn from the parties' submissions, *fn3" with any differences between them resolved in Rushing's favor. *fn4"

 Facts

 Rushing has been employed by United as a ramp serviceman since 1984 (Complaint and Answer P11). Montes, who has been employed by United since 1964, has been an air freight supervisor since 1979 (Montes Dep. 6, 8-9; Lampe Aff. P4). At the time of the alleged harassment, Rushing and Montes both worked on the same shift in United's air freight area.

 Before this opinion moves on to the details of Rushing's allegations, it will be helpful to discuss briefly the somewhat confusing hierarchy of command in the air freight area. All employees in that area--supervisors and ramp servicemen alike--report to United's Cargo Services Manager Jack Lampe ("Lampe"). Air freight supervisors rank below Lampe in the hierarchy. Their exact role is somewhat unclear from the parties' submissions. There are however a number of aspects of their job that are covered by the information provided by the litigants, and those will be identified next.

 Thus the supervisors have the general responsibility for ensuring that ramp servicemen do their jobs (Montes Dep. 36), but they do not have the power to hire, fire, promote or demote the servicemen (Montes Dep. 162; Lampe Aff. P4). Supervisors can however initiate discipline proceedings against ramp servicemen in the form of a "write-up" (Montes Dep. 50). *fn5" Once discipline proceedings have been commenced against a ramp serviceman supervisors do not have the power to dismiss or alter the proceedings (Lampe Aff. P5; Walther Dep. 94-96).

 Supervisors also play a role in doling out job assignments to ramp servicemen, depending on the need during a particular shift. Those jobs, which include unloading cargo, running freight, cleaning up the building and dumping the mail (Montes Dep. 36), are spelled out explicitly in the collective bargaining agreement ("CBA") between United and the International Association of Mechanics and Aerospace Workers ("Union") (Montes Dep. 159; Lampe Aff. P6). Supervisors assess the situation and then tell a "lead ramp serviceman" what needs to be done (Curry Dep. 14). Then the "lead" bears the responsibility for assigning jobs to particular employees (Montes Dep. 162-63; Rushing Dep. 22). When the lead is not present, supervisors step in and hand out assignments, something that occurred quite often on the shift that Montes and Rushing worked (id. at 22, 39; Montes Dep. 52, 163). Although seniority plays some role, the person who passes out assignments (whether it be the lead or the supervisor) has the discretion to assign to servicemen any job that falls within the CBA and that needs to be done at a particular time. At no time did Rushing report directly to Montes, and Rushing admits that the extent of Montes' control over him was limited to Montes' ability to initiate discipline and to pass out job assignments (P. Mem. 2-3).

 At the heart of this case is Rushing's contention that Montes repeatedly asked Rushing to perform fellatio on Montes. Rushing says that Montes repeatedly used the phrase "suck my dick" when speaking with Rushing (e.g., Rushing Dep. 26, 28-33, 51-52). Rushing cannot recall the number of times Montes used the phrase or when Montes first used it (id. 13), but he says that Montes used the term on "several" occasions (id. 51). Although Rushing admits that at first he perceived Montes' usage as only figurative, Rushing says that he eventually perceived Montes to be serious in his request for oral sex. (id. 30-31). For his part Montes admits using the phrase "suck my dick"--among other profanities--toward Rushing and other employees (Montes Dep. 33, 74), but he denies that he ever said it with sexual intent (id. 81-82, 165-66). Montes also contends, and other air freight area employees corroborate, that on more than one occasion Rushing used the phrase "suck my dick" toward Montes (Montes Dep. 169; Curry Dep. 99, 105-06; Lampe Aff. P16). But Rushing denies ever using the phrase toward Montes (Rushing Dep. 27), and his version must be credited on the current motion.

 In addition to that general summary, Rushing chronicles two incidents in more detail. Rushing says that on one occasion (he cannot provide a date) when he and Montes were alone in a van as Montes transported Rushing from one part of the freight area to another, Montes asked Rushing to perform oral sex on him (Rushing Dep. 32). When Rushing refused, Montes said "Let me suck yours then" (id.). When Rushing again refused, Montes pointed to another ramp serviceman--a man rumored to be homosexual *fn6" --and told Rushing that the worker had performed oral sex on Montes "real good," and once again asked Rushing, "Why don't you do me now?" (id. 32). Montes then reached over to try to touch Rushing's lap (id. 69). Rushing interrupted Montes' attempt to touch him, refused his request and asked to be allowed out of the van. Montes denies that any of those things happened (Montes Dep. 70-72).

 According to Rushing, Montes made the suggestion that Rushing perform oral sex on him virtually every time that Rushing was alone in the van with Montes. At some point Rushing told some of his co-workers about Montes' repeated propositions in the van, and he says that he then became the object of jokes whenever his co-workers saw that Montes was about to transport Rushing from one area to another (Rushing Dep. 172-73). Eventually the combination of Montes' propositions and his co-workers' jokes prompted Rushing to refuse to get into a vehicle with Montes when the two would be alone (id. 32-33).

 Another incident central to Rushing's claim occurred on April 1, 1993 when Montes was passing out daily job assignments. According to Rushing, Rushing was left without an assignment after everyone else had been assigned. When Rushing asked Montes what Montes wanted him to do (meaning a job assignment), Montes "asked [Rushing] to suck his cock and he clutched his pants" (Rushing Dep. 177). One of the other ramp servicemen, Joe Gutierrez ("Gutierrez"), witnessed that exchange and corroborated Rushing's story in a signed statement submitted with the Union grievance (P. Mem. Ex. B). Montes denies both (1) that he used any phrase like "suck my cock" on April 1, 1993 and (2) grabbing his crotch (Montes Dep. 85).

 According to Rushing, that April 1, 1993 incident pushed him over the edge, and he began to contemplate filing a grievance against Montes. On April 22, 1993 Rushing, Montes and union shop steward Chester Walther ("Walther") met about the grievance that Rushing was contemplating. Montes "pleaded" with Rushing not to pursue the grievance, but to no avail: On May 5, 1993 Rushing filed a grievance alleging that Montes had sexually harassed him during the April 1 incident.

 In Step 1 of the Grievance Procedure *fn7" Lampe investigated Rushing's complaint. On June 3, 1993 he reached this conclusion (Rushing Dep. Ex. 6):

 
I've investigated this grievance with the principals. A dispute of facts remains. Both the Grievant and Mr. Gutierrez agree that there have been no subsequent problems between the parties since the alleged infraction on 4/1/93. Mr. Montes understands that only the most professional behavior on his part is acceptable.
 
* * *
 
I do not expect any further problems between Mr. Montes and Mr. Rushing. Mr. Montes understands the seriousness of these allegations and the consequence of future allegations of this nature.

 In addition to making those findings, Lampe counseled Montes on the seriousness of the allegation and transferred Montes to a different shift to limit his contact with Rushing (Lampe Aff. P12).

 Rushing and Union appealed Lampe's finding, necessitating a Step 2 hearing before United Vice President Tom Powers ("Powers"). On August 31, 1993 Powers found that what had occurred, while troubling, did not constitute sexual harassment (Rushing Dep. Ex. 6):

 
The information presented did not show sexual implication or intent for sexual activity or leading to a sexual encounter. I do believe the behavior and foul language/remark by Supervisor Montes was unprofessional and totally inappropriate. This type of unprofessionalism on the part of management, or any other employee, will not be tolerated in the workplace.

 As a result of that finding Lampe again met with Montes on September 20, 1993 (Lampe Aff. P15). Three days later Lampe issued a letter of discipline (Lampe Aff. Ex. 3) to be placed in Montes' file, warning Montes that further unprofessional conduct would subject him to discharge, and also requiring him to attend additional Human Resources training.

 Rushing was not satisfied and opted to purse the grievance to Step 3. After a March 24, 1994 hearing, hearing officer Caren Wuerl affirmed the Step 1 and 2 conclusions in a written finding dated April 19, 1994. There is no indication that the incident has proceeded to a Step 4 hearing.

 Meanwhile Rushing filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on September 10, 1993 (Rushing Dep. Ex. 6). On May 21, 1994 he was issued a right to sue letter, and on August 18, 1994 he filed his multicount complaint in this action. Count I is a standard sex discrimination claim under Section 2000e-2, while Count II is a retaliation claim under Section 2000e-3. Both Title VII counts target United and Montes. Rushing also invokes this Court's supplemental jurisdiction under 28 U.S.C. § 1367 ("Section 1367") to assert three state law claims: *fn8" Count IV charges that United was negligent in supervising and training Montes, Count V asserts that Montes intentionally inflicted emotional distress upon Rushing and Count VI (creatively titled "Ratification") claims that by not taking action against Montes United "caused Plaintiff to suffer great mental suffering, pain, physical distress, and other ailments...." This opinion treats Counts I and II separately at the outset before turning to the state law claims.

 Count I -- Sexual Harassment

 Title VII's prohibition against discrimination on the basis of sex includes 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)). Sexual harassment occurs either (1) under a "hostile environment theory" where an employer's conduct--or conduct by an employee that can be attributed to the employer--creates a work environment that is hostile or abusive to the plaintiff ( Saxton v. AT&T Co., 10 F.3d 526, 533 (7th Cir. 1993) or (2) under a "quid pro quo" theory where submission to sexual demands is made a condition of tangible employment benefits ( Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir. 1990).

 Rushing has asserted both of those theories against Montes as well as United. However, Williams v. Banning, 72 F.3d 552, 553-54 (7th Cir. 1995) has held that a supervisor in his or her individual capacity does not fall within Title VII's definition of "employer," so that Title VII does not impose individual liability on supervisors. Because Williams dictates that Rushing's Title VII claim ...


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