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PAAPE v. WALL DATA

July 8, 1996

CANDY PAAPE, Plaintiff,
v.
WALL DATA, INC., Defendant.



The opinion of the court was delivered by: SHADUR

 Candy Paape ("Paape") has sued her former employer Wall Data, Inc. ("Wall Data"), charging it with sexual harassment and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Paape also invokes this Court's supplemental jurisdiction under 28 U.S.C. § 1367(a) to assert a state law claim of breach of contract in violation of the Illinois Sales Representative Act, 820 ILCS 120/1 to 120/3. Wall Data has moved for summary judgment pursuant to Fed. R. Civ. P. ("Rule") 56, and its motion is fully briefed and--despite some difficulties posed by Paape's failure to adhere fully to the requirements of this District Court's General Rule ("GR") 12(M) and 12(N) *fn1" --ready for decision. For the reasons stated in this memorandum opinion and order, Wall Data's motion is granted in part and denied in part.

 Summary Judgment Standards

 Familiar Rule 56 standards impose on Wall Data the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to Paape ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir. 1992)), that does not negate the potential for summary judgment in cases where a movant plainly satisfies the Rule 56 standards ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)).

 As in any summary judgment proceeding, this Court accepts nonmovant Paape's version of any disputed facts. What follows is a version of the facts culled from the parties' submissions (see Appendix), with any differences between the two resolved in Paape's favor. Other relevant facts, which fit somewhat better into the substantive legal discussion, will be set out later in the opinion.

 Facts

 Wall Data is a software publishing company with over 30 offices in the United States, the United Kingdom and Canada. It specializes in connectivity software, which enables mainframe and mid-range computers to interface with personal computers (D. 12(M) PP1-2).

 In October 1992 Paape met with Wall Data Regional Manager Jim Maguire ("Maguire") to interview for the position of application systems group territory manager ("ASG") (D. 12(M) PP4-5; Paape Aff. P1). During that interview Maguire asked Paape (among other things) questions as to whether she was "strong-willed" enough to handle herself in dealing with the men she would encounter in a sales environment--specifically how she would handle any sexual advances made by potential customers (Paape Dep. 21-23; Paape Aff. P1).

 Shortly thereafter Maguire recommended to Wall Data Vice President of North American Sales Jim Robb ("Robb") that Wall Data hire Paape as an ASG. Although Robb was concerned about doing so because he felt that Paape lacked sales experience, she was hired in November 1992 as an ASG in Wall Data's Itasca, Illinois office *fn2" --a regional sales office managed by Maguire that handled accounts in 12 midwestern states (D. 12(M) PP3-4, 7-9; Robb Dep. 29). But Paape's tenure as an ASG was to be short-lived, because in January 1993 Wall Data made the decision to phase out the ASG position in all its offices (D. 12(M) P10).

 During the first week of February 1993, Wall Data held a company sales meeting in San Francisco. *fn3" After dinner one evening, Paape was standing with a group of co-workers when Maguire approached her, put a condom in her hand and asked her if she would sleep with him (Paape Dep. 88-89; Paape Aff. P2). Throughout that evening Maguire continued to make advances toward Paape including putting his arms around her, grabbing her head and trying to kiss her (id.; Paape Dep. 130-31). At one point he told her that if she did not give in to him sexually she would be assigned to manage a less desirable sales territory (Paape Dep. 192; Paape Aff. P2). *fn4" When Maguire tried to make amends the next day by apologizing for his behavior, Paape "asked him if it was going to affect my territory and my job working there." Maguire responded that it would not (Paape Dep. 135-36). *fn5"

 In mid to late February Maguire met with Burke, Mallon and Paape and divided up the territory among them (Paape Dep. 45; Maguire Dep. 33-36; Burke Aff. P5). Maguire took portions of Burke's and Mallon's territories (DuPage, Kane and McHenry Counties, a portion of Cook County and the City of Rockford) and gave them to Paape, while Mallon kept the City of Chicago and a portion of Lake County and Burke retained southern Illinois, Indiana and Missouri (D. 12(M) P12; see P. Ex. 1 and Paape Dep. Ex. 5 for a more specific description of Paape's territory). Burke and Mallon each retained certain accounts in Paape's newly-created territory, and Paape was given a few accounts within Burke's and Mallon's territories (D. 12(M) P14; Paape Dep. 44-49, 55-56, 173-80; Paape Aff. PP5-6; P. Ex. 1). *fn8"

 Wall Data territory managers were required to meet annual sales quotas (Robb Dep. 18). Because he felt that Paape was "less qualified than some of the other territory managers" (Maguire Dep. 26), Maguire gave Paape a yearly quota of $ 1.2 million in sales (prorated because she did not start as a territory manager at the beginning of the year), the lowest quota that he was authorized to give (D. 12(M) P22). *fn9" In addition Paape was to establish a pipeline of accounts with a potential revenue of four times the amount of her annual quota, and she was also required to make at least three face-to-face sales calls per day, with a minimum of 15 calls per week (D. 12(M) P24; Paape Dep. Ex. 4). Maguire discussed those job requirements with Paape, and he gave her a "Performance Plan" that said Paape should average at least $ 100,000 in sales per month and a "Compensation Plan" that described Paape's sales territory and listed her 1993 annual quota as $ 1.2 million (D. 12(M) PP24-25; Paape Dep. 39-43; Paape Dep. Ex. 4). Maguire also told Paape that it would take her "at least one year to develop that territory, because the given accounts that were established were given to Paul [Mallon] and Mike [Burke]," but that statement is not reflected in either the Performance Plan or the Compensation Plan (Paape Dep. 180-81; Paape Aff. P7).

 Paape testified that between the time she was originally assigned her territory and October 1993, Maguire changed her territory three times (Paape Dep. 49). In the first instance (in March) Paape stated that she lost "chunks of zip codes, areas" and accounts but could not recall what areas or accounts were taken (Paape Dep. 57-58, 62-63). In the second (in July) Paape was given Burke's Abbott Laboratories account but her territory was "made smaller" (Paape Dep. 58-59; D. 12(M) P20). But the third instance (in October) was a nonevent: Although a potential change was proposed, it did not take place (Paape Dep. 59-61). Also, in mid-1993 Maguire took the State of Missouri from Burke and did not give him any territory in exchange (D. 12(M) P20).

 Also in October, Paape asked Maguire to enlarge her territory--a request that she had been making on a monthly basis (Paape Dep. 204-05), including her request sometime during the summer of 1993 that she be reassigned the recently vacated State of Wisconsin (Paape Dep. 182-86; Paape Aff. P9; P. Ex. 5). Maguire responded that she should "stop whining" and that "there was something that [she] could do to increase [her] sales or to get a better territory." Based on "the way he said it" and "the way he leaned across the desk and looked at me," Paape understood that he was referring to sexual favors (Paape Dep. 211-13; Paape Aff. P17).

 On November 10, 1993 Maguire met with Paape (D. 12(M) P34). At that point she was not close to meeting her sales quota (see n.10; Paape Dep. 242). *fn11" At the meeting Maguire told Paape that it did not appear that there was any way she was going to meet her sales quota and asked her to resign (D. 12(M) P37). Although Paape claimed that she had several potential sales in the works, she admitted during her deposition that even if all of her then potential sales went through, she would not have met her sales quota (Paape Dep. 242; D. 12(M) P40). *fn12" Paape refused to resign, and at the end of the meeting Maguire fired her (D. 12(M) P41). Robb did not disagree with Maguire's decision to terminate Paape (Robb Dep. 37).

 Sexual Harassment

 Title VII's prohibition against discrimination on the basis of sex includes sexual harassment ( Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Such claims may be based on either (1) 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)) or (2) a "hostile environment" theory where an employer's conduct--or conduct by an employee that is 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)). Paape has asserted both theories against Wall Data.

 Quid Pro Quo

 Dockter, 913 F.2d at 461, citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir. 1987), defines quid pro quo sexual harassment:

 
This type of sexual harassment describes situations in which submission to sexual demands is made a condition of ...

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