II. Factual Background
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
prior to filing suit.
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
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).
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 the inquiry, however. In applying traditional agency law principles to corporations accused of hostile environment sexual harassment, a number of federal courts have adopted the following bright-line rule:
[When] an employer has taken energetic measures to discourage sexual harassment in the workplace and has established, advertised, and enforced effective procedures to deal with it when it does occur, it must be absolved of Title VII liability under a hostile work environment theory of sexual harassment. That defense depends, of course, on the ability of the employer to establish that its employees could not reasonably have failed to know of those measures and that its grievance procedures were clearly "calculated to encourage victims of harassment to come forward."
Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1398 (D.C. Cir.), cert. denied, 116 S. Ct. 569 (1995) (quoting Meritor, 477 U.S. at 73); Bouton v. BMW of North America, Inc., 29 F.3d 103, 110 (3d Cir. 1994) ("We hold that an effective grievance procedure . . . shields the employer from Title VII liability for a hostile environment."); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 184 (6th Cir.), cert. denied, 506 U.S. 1041, 113 S. Ct. 831, 121 L. Ed. 2d 701 (1992) (stating that a grievance "policy itself, if effective, could serve as an insulation from liability"); Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1560 (11th Cir. 1987) ("An employer may be insulated from liability for hostile working environment sexual harassment where (1) the employer has an explicit policy against sexual harassment, and (2) it has effective grievance procedures . . . ."); Ellerth v. Burlington Industries, Inc., 912 F. Supp. 1101, 1118 (N.D. Ill. 1996) (refusing to hold an employer liable because of the plaintiff's "deliberate failure to utilize the equal employment opportunity procedures outlined in the handbook, and her failure to take any other measures to notify appropriate . . . management personnel about her harassment . . . .").
FCA has presented abundant evidence that its grievance procedures were "calculated to encourage victims of harassment to come forward"--the effectiveness standard set forth in Meritor and Gary. As discussed in the Factual Background section supra, FCA's Human Resources Department has manifested its willingness to take action to prevent sexual harassment by disciplining 17 employees since 1989 and investigating six other claims. The exhibits submitted by FCA show that it was not only willing to respond to harassment complaints, but also engaged in proactive efforts to raise employee awareness of and sensitivity to the problem (such as sponsoring role-playing sessions, showing informational videos, and circulating reminder pamphlets). Def.'s Exs. H-J. There is also undisputed evidence that Butta-Brinkman was aware of FCA's grievance procedures, and that she had enough confidence in the effectiveness of the procedures that she intended (at least at one point) to invoke them. Instead of doing so, however, she elected to file the instant lawsuit and not cooperate with FCA's subsequent attempts to investigate her claim.
Butta-Brinkman does not dispute FCA's evidence of effectiveness. Her only attempt to excuse her failure to invoke FCA's grievance procedures is to suggest that several employees--including Wagaman--told her that invoking the procedures would be fruitless. See, e.g., Pl.'s 12(N) P P 9, 25, 80. But she has not presented any concrete evidence that might justify her co-workers' alleged lack of faith in FCA's grievance procedure.
These subjective assertions concerning FCA's grievance process are clearly insufficient to counter FCA's voluminous proof of its effectiveness,
and reliance on such assertions--which Butta-Brinkman never attempted to verify (Pl.'s Dep. at 81)--does not excuse her failure to lodge a grievance. Accordingly, there is no genuine question of material fact with respect to FCA's liability with respect to any hostile work environment that may have existed, and we grant summary judgment for FCA on this issue.
B. Quid Pro Quo
To prevail on her claim of quid pro quo harassment, Butta-Brinkman must eventually prove that: (1) Wagaman "made submission to sexual demands a condition of tangible employment benefits," Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir. 1990); and (2) she experienced some tangible detriment as a result of her refusal to comply with Wagaman's demands, id.; Gary v. Long, 313 U.S. App. D.C. 403, 59 F.3d 1391, 1395-96 (D.C. Cir. 1995) (collecting cases); Rushing v. United Airlines, 919 F. Supp. 1101, 1109 (N.D. Ill. 1996)). Employers are strictly liable for acts of quid pro quo sexual harassment by their supervisory employees. Horn v. Duke Homes, 755 F.2d 599, 605-06 & n.9 (7th Cir. 1985); see also Nichols v. Frank, 42 F.3d 503, 513-14 (9th Cir. 1994); Karibian v. Columbia University, 14 F.3d 773, 777 (2d Cir.), cert. denied, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 185-86 (6th Cir.), cert. denied, 506 U.S. 1041, 113 S. Ct. 831, 121 L. Ed. 2d 701 (1992); 3 Lex K. Larson, Employment Discrimination § 46.07 (2d ed. 1996).
Under this standard, Butta-Brinkman has clearly set forth evidence sufficient to create a question as to whether she was the victim of quid pro quo harassment. As discussed above, Butta-Brinkman's deposition testimony--which we believe for purposes of this motion--contains numerous examples of statements by Wagaman which "made submission to sexual demands a condition of tangible employment benefits." See Pl.'s Ex. B (chart listing Wagaman's various harassing statements). Butta-Brinkman also presents facts from which a jury might reasonably conclude that her refusal to comply with Wagaman's sexual demands resulted in tangible detriment to her, such as being placed on "probation" and a "performance plan," impairment of her ability to earn a bonus, and being forced to take a leave of absence because of stress-related illnesses caused by the harassment. Pl.'s 12(N) PP 84-89; Pl.'s Exs. D-E, M. These occurrences easily meet the low threshold plaintiffs must satisfy in showing a tangible detriment in quid pro quo cases. See Bryson v. Chicago State University, 96 F.3d 912, 1996 WL 528821, at *4 (7th Cir. 1996) (noting that "a wide variety of actions, some blatant and some subtle, can qualify" as tangible employment detriment); see also Smart v. Ball State University, 89 F.3d 437, 441 (7th Cir. 1996) ("Adverse employment actions extend beyond readily quantifiable losses . . . ."); Collins v. Illinois, 830 F.2d 692, 703 (7th Cir. 1987); 3 Larson, supra, § 46.05 ("The plaintiff's job need not be at stake; less extreme adverse employment actions such as a . . . disciplinary measure will suffice."). In its Reply Brief, FCA refers us to considerable evidence indicating that Butta-Brinkman suffered no detriment, or that any detriment she experienced was unrelated to her refusal to comply with Wagaman's sexual demands, but we believe Brinkman has presented enough evidence on this question to create a genuine issue of material fact for the jury to resolve. Accordingly, we deny FCA's motion for summary judgment with respect to Butta-Brinkman's quid pro quo claim.
For the foregoing reasons, FCA's motion for summary judgment is granted with respect to Butta-Brinkman's hostile work environment claims, and denied with respect to her quid pro quo harassment claims. It is so ordered.
MARVIN E. ASPEN
United States District Judge