another occasion, asked her if her breasts had become bigger during her pregnancy. One day at a fruit market, Davis recited a poem comparing eating a mango to eating a breast.
Finally, in early 1995, Davis asked plaintiff if there was any chance they were ever going to "get together," meaning become sexually involved. Plaintiff responded that it would "never" happen. Davis became teary eyed and went to the washroom to compose himself. When he came back out, he said he was never going to mention it again. Two months later, Davis informed plaintiff that, there being no chance of them getting together, he was transforming his love into hate. On May 8, 1995, Davis called plaintiff into his office, said his wife was a "bitch," and asked plaintiff to close the door and stay with him. When plaintiff refused, Davis leaned across his desk and said, "What's the matter? Are you afraid I'm going to rape you?" Plaintiff was stunned and ran out of the office. Ten days later, Davis fired plaintiff.
There is clearly sufficient evidence to infer that Davis became disenchanted with plaintiff and discharged her because he finally realized that she was never going to succumb to his attempts to develop a sexual relationship. There is sufficient evidence of sexually motivated harassment and a tangible effect on plaintiff's employment--she lost her job. The quid pro quo sexual harassment claim must stand.
A hostile work environment sexual harassment claim requires proof of harassment "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Pasqua v. Metropolitan Life Insurance Co., 101 F.3d 514, 516 (7th Cir. 1996) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Factors to consider include "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 Telephone & Telegraph Co., 10 F.3d 526, 534 (7th Cir. 1993) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993)). The work environment must be both objectively hostile or abusive--that is conditions that a reasonable person would find to be hostile or abusive--and subjectively hostile or abusive in that the victim perceived it as such. Saxton, 10 F.3d at 534 (quoting Harris, 510 U.S. at 21-22).
Plaintiff relies on the previously summarized facts as evidence of a hostile environment. She also points to occasions of short duration when Davis had sexually explicit art objects in the office. Davis also asked plaintiff a number of times if she was "sleeping with" another employee.
The evidence is sufficient for a jury to find that the harassment was a continuing violation from September 1991 until plaintiff's discharge in May 1995. During that three and one-half year period, Davis frequently touched plaintiff and frequently arranged to be alone with her. He frequently attempted to develop a more personal relationship with plaintiff. On a number of occasions, he directly stated he wanted to have a sexual relationship with plaintiff. Resolving all evidentiary disputes in plaintiff's favor, the conduct is sufficiently egregious to satisfy the objective component. Plaintiff's testimony as to her subjective reaction also satisfies the subjective component. Summary judgment with respect to the hostile work environment claim will be denied.
Plaintiff contends retaliation occurred because she opposed sexual harassment during a May 9, 1995 meeting with Davis. A necessary element of such a claim is that plaintiff engaged in statutorily protected activity. Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469, 479 (7th Cir. 1995). Plaintiff points to pages 630-45 of her deposition, her notes of the May 9 meeting (Pl. Exh. Q), and P 23 of defendant's Local Rule 12(M) Statement. None of these documents support that, at the May 9 meeting, plaintiff engaged in statutorily protected activity.
Plaintiff apparently relies on statements to Davis that he had scared all the women in attendance at the meeting and the fact that plaintiff mentioned Davis's retort, "Are you afraid I'm going to rape you?" Plaintiff's own testimony and notes support that the gist of the meeting with Davis was to express concern for his mental health and ability to run the company and suggest he needed help. Telling him women in the office were fearful of his behavior is not telling him that he was committing sexual harassment or other behavior violative of Title VII. Mere reference to the rape statement also does not raise such issues. The Count II retaliation claim will be dismissed.
Last, defendant argues there is inadequate evidence to support a claim she was discharged because of gender discrimination distinct from the sexual harassment. Defendant contends no case of discrimination can be made because plaintiff cannot point to a similarly situated male who was treated more favorably. Alternatively, defendant contends plaintiff cannot rebut the stated grounds for her termination.
The elements of a prima facie case of employment discrimination will vary in accordance with the type of employment practice involved and other circumstances of the case. See Collier v. Budd Co., 66 F.3d 886, 890 (7th Cir. 1995); Feigl v. Englewood Electrical Supply Co., 1996 U.S. Dist. LEXIS 9836, 1996 WL 396092 *3 (N.D. Ill. July 12, 1996). Ordinarily, to make out a prima facie case of discriminatory discharge, a plaintiff must show that he or she (1) is in a protected group, (2) was performing up to the employer's legitimate expectations, and (3) was discharged. Originally, the usual fourth element was that the employer then sought a replacement. See Oxman, 846 F.2d at 453. Recognizing that the fourth element could not be satisfied in a reduction-in-force case, Oxman holds that a discharged employee can instead show that others not in the protected group were treated more favorably.
See id. at 453-55. See also Collier, 66 F.3d at 890-91. Although some cases refer only to the replacement element and some only to the favorable treatment element, either may be sufficient depending on the circumstances of the case.
Denisi v. Dominick's Finer Foods, Inc., 99 F.3d 860, 864 (7th Cir. 1996); Gadsby v. Norwalk Furniture Corp., 71 F.3d 1324, 1331-32 (7th Cir. 1995); Collier, 66 F.3d at 890-91; Oxman, 846 F.2d at 453-55; King v. Wiseway Super Center, Inc., 954 F. Supp. 1289, , 1997 WL 57064 *4 (N.D. Ind. 1997); Saeli v. Motorola, Inc., 917 F. Supp. 589, 593 (N.D. Ill. 1996); Feigl, 1996 U.S. Dist. LEXIS 9836, 1996 WL 396092 at *3; Brown v. Oscar Mayer Foods Corp., 1996 U.S. Dist. LEXIS 2554, 1996 WL 99412 *2 (N.D. Ill. March 5, 1996). Also, any other factor from which it can logically be believed that a decision rests on a legally forbidden ground can be substituted for the fourth element. See Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996) (per curiam); Chiaramonte v. Fashion Bed Group, Inc., 932 F. Supp. 1080, 1087 (N.D. Ill. 1996).
Plaintiff contends that the first three elements are sufficient. Oxman, 846 F.2d at 453, expressly states otherwise. See also Kralman v. Illinois Department of Veterans's Affairs, 23 F.3d 150, 154 n.3 (7th Cir.), cert. denied, 115 S. Ct. 359 (1994); Jennings v. Uniroyal Plastics, Inc., 1989 U.S. Dist. LEXIS 12493, 1989 WL 125601 *5 (N.D. Ind. Jan. 25, 1989); Nellis v. Service Web Offset Corp., 695 F. Supp. 398, 401 (N.D. Ill. 1988). O'Connor v. Consolidated Coin Caterers Corp., 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996), and Carson, supra, are not to the contrary. O'Connor holds that, in age discrimination cases, replacement by a person outside the protected group (that is a person 40 or younger) is not a proper fourth element of the prima facie case. Instead, the replacement must be sufficiently younger; the key is the number of years of difference in age, not whether the replacement is outside the protected age group. When O'Connor, 116 S. Ct. at 1310, states "being replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case," it does not mean that replacement cannot be a required element, but means in age discrimination cases age, not the protected class, is the proper focus. Also implicit in O'Connor is that another set of factors from which an inference of discrimination may logically be drawn can be substituted for the usual factors. See id.
In Carson, a discharged white employee was replaced by another white employee. Relying in part on O'Connor, Carson states:
An employee may be able to show that his race or another characteristic that the law places off limits tipped the scales against him, without regard to the demographic characteristics of his replacement. . . . The question instead is whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground. That one's replacement is of another race, sex, or age may help to raise an inference of discrimination, but it is neither a sufficient nor a necessary condition. . . . Any demonstration strong enough to support a judgment in the plaintiff's favor if the employer remains silent will do, even if the proof does not fit into a set of pigeonholes.
Carson, 82 F.3d at 159. The statement that being replaced by a person of another race, sex, or age is not a "necessary" condition does not mean that the fourth element has been eliminated and the first three elements are sufficient. It just means that other sufficient factors may be used to establish the prima facie case.
For the reasons stated above, the holding in Shivers v. Honeywell, Inc., 933 F. Supp. 705, 709 (N.D. Ill. 1996), that the first three elements are a sufficient prima facie case in light of O'Connor and Carson, will not be followed. To make out a prima facie case of a discharge based on sex discrimination, a female plaintiff must show the standard three elements plus that she was replaced by a male or treated less favorably than a comparable male. Alternatively, she can show another set of factors from which a discriminatory discharge can reasonably be inferred.
There is no contention that plaintiff has failed to satisfy the first three elements. The burden is on plaintiff to show that she can satisfy the fourth element or some alternative prima facie case. She does not contend she can show a comparable male was treated more favorably. Neither party points to any evidence as to whether plaintiff was replaced. Plaintiff does not contend she can satisfy an alternative prima facie case or that she has direct evidence of sex discrimination. Since plaintiff has not satisfied her burden, the Count III claim for a discharge based on gender discrimination will be dismissed.
IT IS THEREFORE ORDERED that defendant's motion to strike certain exhibits to plaintiff's response [83-1] is denied. Defendant's motion for summary judgment [68-1] is granted in part and denied in part. Counts II and III are dismissed. In open court on May 8, 1997 at 9:15 a.m., the parties shall present an original and copy of a topbound, final pretrial order in full compliance with Local Rule 5.00.
William T. Hart
UNITED STATES DISTRICT JUDGE
DATED: MARCH 27, 1997