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DRAGO v. AETNA PLYWOOD

March 27, 1997

ANNETTE P. DRAGO, Plaintiff,
v.
AETNA PLYWOOD, INC., a Delaware corporation, Defendant.



The opinion of the court was delivered by: HART

 Plaintiff Annette Drago was formerly employed by defendant Aetna Plywood, Inc. Plaintiff alleges she was subjected to sexual harassment, gender discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant has moved for summary judgment dismissing all claims. *fn1"

 On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Oxman v. WLS-TV, 846 F.2d 448, 452 (7th Cir. 1988); Jakubiec v. Cities Service Co., 844 F.2d 470, 471 (7th Cir. 1988). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Id. at 473. The nonmovant, however, must make a showing sufficient to establish any essential element for which she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Id. at 324. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 102 L. Ed. 2d 110, 109 S. Ct. 137 (1988). As the Seventh Circuit has summarized:

 
The moving party bears the initial burden of directing the district court to the determinative issues and the available evidence that pertains to each. "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate 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); id. at 325 ("the burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case"). Then, with respect to issues that the non-moving party will bear the burden of proving at trial, the non-moving party must come forward with affidavits, depositions, answers to interrogatories or admissions and designate specific facts which establish that there is a genuine issue for trial. Id. at 324. The non-moving party cannot rest on the pleadings alone, but must designate specific facts in affidavits, depositions, answers to interrogatories or admissions that establish that there is a genuine triable issue. Id. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus, Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party's]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992).

 In support of her sexual harassment claim, plaintiff relies on both quid pro quo and hostile work environment theories. "Quid pro quo harassment 'occurs in situations where submission to sexual demands is made a condition of tangible employment benefits.'" Ellerth v. Burlington Industries, Inc., 102 F.3d 848, 855 (7th Cir. 1996) (quoting Bryson v. Chicago State University, 96 F.3d 912, 915 (7th Cir. 1996)). The Seventh Circuit has accepted the description of quid pro quo harassment contained in EEOC regulations:

 Bryson, 96 F.3d at 915 (quoting 29 C.F.R. § 1604.11(a)). The employee must suffer a materially adverse employment action. Bryson, 96 F.3d at 916; Butta-Brinkman v. FCA International, Ltd., 950 F. Supp. 230, 235 (N.D. Ill. 1996); Ammons-Lewis v. Metropolitan Water Reclamation District of Greater Chicago, 1997 U.S. Dist. LEXIS 1950, 1997 WL 80949 *3-4 (N.D. Ill. Feb. 21, 1997).

 Quid pro quo harassment may be shown by proof of the following five elements: (1) plaintiff is a member of a protected group; (2) unwelcomed sexual advances were made; (3) the harassment was sexually motivated; (4) plaintiff's reaction to the advances negatively affected a tangible aspect of her employment; and (5) respondeat superior has been established. Defendant does not dispute that (1) and (5) are satisfied: Drago is female and the alleged perpetrator (Jeffrey Davis) is defendant's chief executive officer and sole shareholder. To the extent there is sufficient evidence of sexual advances, there is also no contention that (2) is unsatisfied because any advances were welcomed. Defendant does contend there is no sufficient evidence that any harassment was sexually motivated and also contends there is insufficient evidence of any detrimental effect on plaintiff's employment.

 Defendant contends that plaintiff's concession that Davis did not "expressly demand that they have sex" precludes any successful quid pro quo claim. See Pl. Response to Rule 12(M) Statement P 35. A request for sexual favors, however, may be subtle or implicit. See Bryson, 96 F.3d at 915 (quoting 29 C.F.R. § 1604.11(a)); Doe v. Taylor Independent School District, 975 F.2d 137, 149 (5th Cir. 1992), cert. denied, 506 U.S. 1087 (1993). There is no requirement that the offending party expressly state that sexual favors are required in order to receive or retain a job benefit.

 Resolving all genuine factual disputes in plaintiff's favor, the facts are as follows. Drago first came to work at Aetna in 1988, beginning as Davis's administrative assistant. In 1991, Drago began a quick succession of promotions. In June 1991, she was promoted to Human Resource's Director. Six months later she was promoted to Associate Vice-President. In January 1993, she was promoted to Executive Vice-President, though the promotion was not announced until June 1994. In that position, plaintiff apparently was second only to Davis. In May 1995, Davis fired plaintiff.

 Plaintiff concedes that Davis never expressly stated that having a sexual relationship was required in order to receive or retain any of the promotions. However, in September 1991, during discussions of salary increases, Davis informed plaintiff that he had fallen in love with her and was obsessed with her. He told her he wanted to "make love" to her and inquired as to whether she had similar feelings for him. Plaintiff flatly rejected Davis's overtures. On a number of occasions over the next several years, Davis made references to whether they would ever be able to get together and that he would be waiting for her. Davis attempted to give plaintiff a diamond tennis bracelet, which she refused, saying it was a token of his feelings and that he wanted them to grow closer together. During this time period, Davis frequently touched her shoulder and back. On one occasion, Davis attempted to kiss plaintiff and on another occasion tried to hold her hand. Davis would also arrange for them to frequently do business together and have lunch together, without other employees present. Davis once told plaintiff he would like to see her without makeup *fn2" and, on 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 ...


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