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BUTTA-BRINKMAN v. FCA INT'L

October 28, 1996

Linda Butta-Brinkman, Plaintiff,
v.
FCA International, LTD. d/b/a Financial Collection Agencies, Inc., Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Linda Butta-Brinkman was employed by Defendant Financial Collection Agencies, Inc. (FCA) from September 1994, until May 1995. Butta-Brinkman claims that during this period she was subjected to continuous sexual harassment by her supervisor, Robert Wagaman, and that this conduct violated Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. ยง 2000e et seq.). FCA has moved for summary judgment. For the reasons set forth below, we grant the motion in part and deny it in part.

 I. Summary Judgment Standard

 "A district court must grant summary judgment where the record before it shows that 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir. 1995) (quoting Fed.R.Civ.P. 56(c)). The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If this burden is carried, the non-movant "must set forth specific facts showing that there is a genuine issue for trial" in order to defeat summary judgment, and cannot merely rest on the allegations contained in the pleadings. Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324. In deciding a motion for summary judgment we read the facts in a light most favorable to the non-moving party, Cuddington v. Northern Ind. Public Serv. Corp. (NIPSCO), 33 F.3d 813, 815 (7th Cir. 1994), and draw reasonable inferences from those facts in the non-movant's favor. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). What follows in the Factual Background section is a version of the facts drawn from the parties' submissions, with any differences between them resolved, for purposes of this motion, in Butta-Brinkman's favor. *fn1"

 FCA, a company engaged in the business of debt collection, hired Linda Butta-Brinkman as a sales representative in its Lombard, Illinois office in September 1994. Butta-Brinkman reported to Robert Wagaman, FCA's vice-president of United States sales, who had the power to fire her and to control her working conditions. Not long after Butta-Brinkman began working for FCA, Wagaman began harassing her by making sex-related comments, propositions, and threats. Wagaman's crude remarks included responding to Butta-Brinkman's request for brochures and other marketing materials by suggesting that she use her legs and body to persuade clients to place orders, and referring to Butta-Brinkman as his "sexiest and best built rep." Pl.'s Dep. at 57-58. Wagaman also made a number of threats and promises of varying degrees of subtlety which were intended to induce Butta-Brinkman to have sex with him. For example, at one point Wagaman told Butta-Butta-Brinkman--in response to her request for written performance goals--that "your only goal is to be pleasing me and making me happy," and that "your goal is that you let me spread your legs." In a different encounter Wagaman asked her, "don't you realize that the way most women get ahead is by sleeping with their boss?" Wagaman also made explicit threats to fire Butta-Brinkman if she refused to sleep with him, such as telling her "you are going to be my nighttime whore, and your fee will be keeping your job." Pl.'s Dep. at 60, 145, 442, 482. In addition to Wagaman's persistent verbal harassment, on one occasion he reached under Butta-Brinkman's skirt and grabbed her thigh. Pl.'s 12(N) P 37.

 Butta-Brinkman kept detailed notes of the harassment she experienced, but she did not report any of Wagaman's conduct to anyone in FCA's Human Resources Department or to any of his superiors *fn2" prior to filing suit. *fn3" Def.'s 12(M) PP 42-45. Butta-Brinkman was aware of FCA's explicit policy prohibiting sexual harassment. This policy was clearly articulated in FCA's employee handbook, a copy of which Butta-Brinkman possessed, and it was posted in two notices in her office, which Butta-Brinkman admits having seen. Def.'s 12(M) PP 8-10. Butta-Brinkman was also aware of the available methods of pursuing a sexual harassment complaint: she knew that she could report Wagaman's conduct to Tom Foy (Wagaman's boss) or to Caren Hosansky, FCA's Vice President of Human Resources. Def.'s 12(M) PP 16-22. Under Hosansky, FCA's Department of Human Resources has responded aggressively to sexual harassment claims: the Department has investigated 23 formal and informal sexual harassment complaints, 17 of which resulted in some form of disciplinary action being taken by the company against the accused harasser (ranging from written warnings to terminations). Def.'s 12(M) P 29. An outside expert *fn4" retained by FCA to review its sexual harassment policies and procedures concluded, inter alia, that FCA has "a clear specific policy against sexual harassment," and that "women at FCA have every reason to expect a prompt, thorough investigation, and prompt, effective remedial action when they bring forward a complaint of harassment." Blunt Aff. at 1. Butta-Brinkman sets forth no evidence to contradict this assessment of the effectiveness of FCA's sexual harassment grievance procedures.

 FCA's first notice of Wagaman's conduct towards Butta-Brinkman was contained in a letter dated February 24, 1995, which consisted of plaintiff's counsel's Notice of Attorney's Lien for a sexual harassment claim. Def.'s 12(M) P 43, 53. When Hosansky attempted to speak with Butta-Brinkman about the substance of her complaint, Butta-Brinkman refused to discuss the matter with Hosansky and referred her instead to plaintiff's counsel. Def.'s 12(M) P 58. Despite Butta-Brinkman's silence, after receiving the Notice of Lien Hosansky commenced an investigation of Butta-Brinkman's allegations, and notified Wagaman that his future contact with Butta-Brinkman would be monitored. Def.'s 12(M) P 59. Wagaman perpetrated no further acts of harassment after that point. Def.'s 12(M) P 56.

 In late February 1995, about the same time FCA received the Notice of Lien from plaintiff's attorneys, Butta-Brinkman began seeing a physician for treatment of physical and emotional problems (such as depression, chest pains, and difficulty holding down food) that she was experiencing as a result of Wagaman's harassment. Pl.'s 12(N) P 84. These symptoms subsequently became more serious, resulting in Butta-Brinkman being hospitalized, and forcing her to take a medical leave of absence in late March. Pl.'s 12(N) P 89. At roughly the same time, Wagaman refused to give Butta-Brinkman a raise and placed her on a "performance plan." Pl.'s 12(N) P 85, 87. On May 31, 1995, Butta-Brinkman resigned from FCA. Pl.'s 12(N) P 90.

 III. Sexual Harassment Claims

 Title VII's prohibition against discrimination on the basis of sex includes sexual harassment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). Sexual harassment claims fall into two categories: (1) "hostile work environment" claims, 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, 535 (7th Cir. 1993) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)), and (2) quid pro quo claims, where submission to sexual demands is made a condition of tangible employment benefits, Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456 (7th Cir. 1990). Butta-Brinkman contends that she was subjected to both types of sexual harassment, and we consider each claim separately.

 A. Hostile Work Environment

 To prevail on her hostile work environment claim, Butta-Brinkman must eventually prove that: (1) Wagaman's harassment was "'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,'" Harris, 114 S. Ct. at 370 (quoting Meritor, 477 U.S. at 67); and (2) traditional principles of agency law would render FCA liable for Wagaman's harassing conduct, Meritor, 477 U.S. at 72; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). *fn5" For purposes of the instant motion, FCA concedes that Wagaman's harassment created a hostile and abusive working environment for Butta-Brinkman. Def.'s Br. at 1. Butta-Brinkman's claim runs into serious trouble at the agency law stage of ...


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