in which customer service managers spoke to Lacy regarding his handling of customer accounts. For example, on October 14, 1991, Schnaufer spoke with Lacy after monitoring one of his calls. The customer's account showed that the customer owed $ 302, but the customer informed Lacy that the cellular service had been transferred to another individual. Lacy "dealt" with this problem by telling the customer to send the bill to the individual to whom the service had been transferred. Schnaufer informed Lacy that this was "absolutely intolerable" service and that Lacy "had made no attempt to resolve the issue." (12(M) Stmt., P 46). In a second incident on September 3, 1992, Riordan spoke to Lacy because Lacy failed to "follow up" with a customer by the time he had told the customer he would do so. (12(M) Stmt., P 69).
Finally, Riordan drafted a counseling statement for Lacy dated October 29, 1992 because Lacy had accumulated a large number of absences and tardies in 1992. However, this counseling statement was never issued because it was determined that Lacy would be terminated in the workforce re-sizing. (12(M) Stmt., P 73).
C. Plaintiff's Application for Promotions and Complaints of Discrimination
Lacy applied for promotions and departmental transfers in May and June 1991. (Am. Compl., PP 13-14). Smith and Schnaufer told him that he was ineligible to be considered for a promotion in 1991 because he had not been a CSR for one year. (12(M) Stmt., P 107). In addition, Schnaufer also told Lacy in 1991 that Lacy could not apply for a promotion because his performance was not satisfactory, and, after September 1991, because he was on a counseling statement. He was also denied a promotion to the position of Manager, Customer Service on June 16, 1992. (Am. Compl., Exh. A (EEOC Charge)). Schnaufer testified that he told Lacy that "he had to have above average performance in all of the customer service consultant criteria" to be considered for a promotion. (12(M) Stmt., P 108).
Beginning in June 1992, Lacy began complaining to individuals at Ameritech Cellular about discrimination. In June 1992, Lacy told Robert Leger, director of customer service, that African-Americans and male employees were being discriminated against in regard to promotions. (12(M) Stmt., P 129). In July 1992, Lacy met with Fred Fortier, assistant director EEO/AA, and told him that Rita Smith (who is African-American) "favored white employees in terms of promotion." (12(M) Stmt., P 132). In a letter to Fortier dated August 3, 1992, Lacy stated that minorities and men had been discriminated against at Ameritech Cellular in regard to promotions. (12(M) Stmt., P 133).
D. Workforce Re-Sizing and Lacy's Termination
In mid-1992, Ameritech Cellular's parent company, Ameritech Corporation ("Ameritech"), decided to analyze the performance of its workforce and determine whether employees without the necessary skills and record of performance should be terminated. (12(M) Stmt., P 85). Ameritech articulated detailed criteria and procedures for the selection process. (12(N) Resp., P 86; 12(M) Stmt., P 86). In order to determine the workers to be terminated, Ameritech Cellular first ranked employees in certain salary grades based on their 1991 and 1990 performance reviews. (See Plaint. Exh. 34 ("AMCI Resizing Process" and "Selection Criteria"); 12(M) Stmt., P 87). All Ameritech Cellular CSRs were ranked by the human resources department along with all other employees in salary grades 4-8. (12(M) Stmt., P 93). The number of employees ranked in those grades totaled 358. Fifty-seven CSRs were ranked as part of that group. (12(M) Stmt., P 93).
After the initial rankings were completed, each department was asked to review the rankings. Department managers could move employees up or down on the ranking list based on their 1992 job performance. (12(M) Stmt., P 88). Lacy understood that the determination of whether an employee would be terminated would be based on his job "performance, leadership abilities, skills, and the ability to be a part of the team." (12(M) Stmt., P 89).
In Lacy's department, a meeting was held between Schnaufer, Riordan, Donna Londak, Melissa Nuccio, Minnie Hundley, and Cathy Wagner in the fall of 1992. (12(M) Stmt., P 90; 12(N) Resp., P 90). All of the CSRs who received performance rankings of "3" (i.e., unsatisfactory) for 1991 were discussed. The rankings of some of the employees changed as a result of this discussion, based on those employees' performance in 1992. Smith did not make any recommendation regarding the performance of any CSR. (12(M) Stmt., P 91).
Eleven Illinois CSRs were discussed by the customer service managers because their 1991 performance was rated a "3". The three lowest ranked employees -- in descending order -- were Lacy, David Pope (African-American), and Janice Elliot-Rivera (African-American). (12(M) Stmt., P 94). The customer service managers agreed that, based on her 1992 performance, Elliot-Rivera should remain the lowest-ranked CSR. The managers also agreed that Pope's performance had improved in 1992 and that his ranking should be raised. The managers also decided that the performance of a fourth CSR, Jeannette Sielski (white), had deteriorated in 1992 and that her ranking should be lowered. Finally, the managers agreed that no change in Lacy's ranking was warranted based on his 1992 performance. Therefore, after this meeting, the three lowest ranked CSRs were Lacy, Elliot-Rivera, and Sielski. (12(M) Stmt., P 95). These were the Illinois CSRs that were terminated as a result of the workforce re-sizing. (12(M) Stmt., P 96).
Lacy was permitted to appeal his termination, which he did on November 16, 1992. Fred Fortier, assistant director EEO/AA, investigated Lacy's appeal and found no evidence to support Lacy's claims. Fortier recommended that Lacy's appeal be denied. James Riecks, director of human resources, denied Lacy's appeal on December 18, 1992. (12(M) Stmt., P 99).
E. Smith's Alleged Sexual Harassment
Lacy testified that Rita Smith is the only person at Ameritech Cellular who sexually harassed him. (12(M) Stmt., P 118). Lacy testified that this harassment began at a meeting in February 1991, in which Smith sat down next to Lacy, touched his arm, and commented on his watch. Lacy has also testified that Smith positioned her chair at this meeting so that her thigh would brush up against his thigh. (12(M) Stmt., P 119). In March 1991, Smith asked Lacy to come to her office. Behind closed doors, Smith asked Lacy to "express his feelings" and tell her everything he felt about "everything and everybody." (12(N)(3)(b) Stmt., P 71; Plaint. App., Exh. 2, at 5). In a letter to Ameritech Cellular, Lacy later stated that Smith's "voice tone made [him] very uncomfortable" and that he viewed the words "everything" and "everybody" as slightly suggestive. (Plaint. App., Exh. 2, at 5).
In April 1991, Lacy attended a company-sponsored party at a nearby restaurant. During a conversation with Lacy, Smith asked him if he was married, for how long, and how he had kept his wife "satisfied." (12(M) Stmt., P 120; 12(N) Resp., P 120). According to Lacy, Smith also said that if she had enough drinks, she would do "crazy and wonderful things," which Lacy interpreted as a request for sex. Lacy testified that this conversation made him very uncomfortable. (12(M) Stmt., P 120).
In August 1991, Smith telephoned Lacy from her car phone to discuss why he had abruptly left a company outing at Arlington Park race track. During this conversation, Smith told Lacy that he was a "very interesting man," which made Lacy very uncomfortable. (12(N)(3)(b) Stmt., P 73). In a meeting on September 10, 1991, Smith told Lacy that if he were friendlier and learned to socialize with his co-workers (including Smith), that things would be better for him. Lacy interpreted these comments as a request for a date and for sex. (12(M) Stmt., P 121). Lacy also testified that the comments upset him and that he feared that he would lose his job if he did not enter into a social relationship with Smith. (12(M) Stmt., P 122).
Lacy testified that in March 1992 Smith made similar comments to Lacy about making himself available for social activities with his supervisors and superiors. Lacy also felt that these comments were in reference to sex and were inappropriate and illegal. (12(M) Stmt., P 123; Lacy Dep., at 486-88). Lacy also testified that in the course of this conversation, Smith told him that if he were to change his views in regard to social relationships with his co-workers, she would be in a position to assist him in advancing at Ameritech Cellular. (Lacy Dep., at 491). Toward the end of this meeting, Smith came from behind her desk with a book in her hand and held it up so that Lacy could read part of it. During this encounter, Lacy testified that the pelvic area of Lacy's body touched that of Smith and that Smith tilted her head up toward Lacy's face "in the same manner a woman would if she wanted you to kiss her." Lacy testified that this encounter made him very uncomfortable. (12(M) Stmt., P 123; Lacy Dep., at 499).
Finally, Lacy testified that he interviewed with Smith for a customer service manager position in May 1992. Allegedly,
Smith said that she wanted [Lacy] to remember the things that she had told [him] previously about her ability to assist [him] in terms of [his] career, and she repeated the fact that she wanted [Lacy] to think about it carefully and to think about changing [his] view, [his] conservative views about relationships with fellow employees, and she felt that if [he] were to do so, it would go a long way towards [his] being considered for the management position that [they] were discussing.
(12(M) Stmt., P 124).
It is disputed whether Lacy informed Ameritech Cellular of Smith's sexual harassment prior to his termination. (See 12(M) Stmt., PP 125-139; 12(N) Resp., PP 132, 133, 135).
F. EEOC Charge and Allegations of the Complaint
Lacy filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 24, 1993. (12(M) Stmt., P 140). Lacy's EEOC charge does not contain allegations that he was denied promotions in 1991 based on his race or sex. (Am. Compl., Exh. A (EEOC Charge)).
Plaintiff received a right-to-sue letter on April 29, 1995. (Am. Compl., P 6). On July 26, 1996, plaintiff filed an Amended Complaint alleging sex discrimination, race discrimination, sexual harassment, and retaliation, in violation of Title VII.
II. Summary Judgment Standards
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c); Cox v. Acme Health Serv., Inc., 55 F.3d 1304, 1308 (7th Cir. 1995). A genuine issue of material fact exists for trial when, in viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995). The movant has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). If the movant satisfies this burden, the non-movant must set forth specific facts that demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553.
Rule 56(c) mandates the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S. Ct. at 2552-53; Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). A scintilla of evidence in support of the non-moving party's position is not sufficient to oppose successfully a summary judgment motion; "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. The question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52.
Finally, these summary judgment standards are applied "with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995) (citing Courtney v. Biosound, Inc. , 42 F.3d 414, 418 (7th Cir. 1994)). Accordingly, "affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Id.
III. Scope-of-the-Charge and Statute-of-Limitations Defenses
A. 1991 Failure-To-Promote Claims
1. Scope of the Charge
Defendant first contends that plaintiff's Amended Complaint exceeds the scope of his EEOC charge because the complaint claims for the first time that he was denied promotions in 1991. Defendant therefore argues that summary judgment should be granted as to Lacy's 1991 failure-to-promote claims.
The requirement of filing a charge before the EEOC has two purposes. First, it serves to notify the charged party of the alleged violation. Second, it gives the EEOC an opportunity for conciliation, which effectuates Title VII's primary goal of securing voluntary compliance with its mandates. Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126-27 (7th Cir. 1989). In Babrocky v. Jewel Food Co., 773 F.2d 857 (7th Cir. 1985), the Seventh Circuit stated that "allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge." Id. at 863. The Babrocky court noted, however, "the requirement that the scope of the EEOC charge limit the scope of the subsequent complaint is in the nature of a condition precedent with which litigants must comply rather than constituting a component of subject matter jurisdiction." Id. at 864.
In Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F.2d 164 (7th Cir. 1976), cert denied, 429 U.S. 986, 97 S. Ct. 506, 50 L. Ed. 2d 598 (1976), the Seventh Circuit concluded that an employee may present claims "like or reasonably related to the allegations of the charge and growing out of such allegations." Id. at 167 (citation omitted); see also Babrocky, 773 F.2d at 864; Schnellbaecher, 887 F.2d at 127. Babrocky states the applicable test:
All claims of discrimination are cognizable that are "'like or reasonably related to the allegations of the charge and growing out of such allegations.'" . . . The standard is a liberal one in order to effectuate the remedial purposes of Title VII, which itself depends on lay persons, often unschooled, to enforce its provisions.
Babrocky, 773 F.2d at 864 (quoting Jenkins, 538 F.2d at 167 (citations omitted)); see also 773 F.2d at 864 n.2 ("The proper inquiry would be into what EEOC investigation could reasonably be expected to grow from the original complaint."); Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989) ("The judicial complaint in a Title VII case can embrace not only the allegations in the administrative charge but also "'discrimination like or reasonably related to the allegations of the charge and growing out of such allegations."'" (quoting Hemmige v. Chicago Pub. Sch., 786 F.2d 280, 283 (7th Cir. 1986))).
In response to defendant's argument regarding the 1991 failure-to-promote allegations, plaintiff argues that those claims fall within the scope of his EEOC charge because they are "like or reasonably related" to the allegations in the EEOC charge and that an investigation into those claims would grow out of the allegations in the charge that Ameritech Cellular failed to promote plaintiff in 1992. The court agrees. Lacy's EEOC charge included claims related to Ameritech Cellular's failure to promote him in 1992. In investigating such a complaint, it would have been reasonable for the EEOC to also inquire into other incidents in which Ameritech Cellular failed to promote Lacy.
2. Statute of Limitations
Finding that Lacy's 1991 failure-to-promote claims are "like or reasonably related" to the allegations of his EEOC charge, however, does not necessarily save those claims from summary judgment. In Illinois, a complainant must file a charge of discrimination with the EEOC within 300 days of the allegedly discriminatory act. 42 U.S.C. § 2000e-5(e)(1). In this case, Lacy filed his EEOC charge on February 24, 1993. Thus, any claims based on incidents prior to April 30, 1992 (300 days before the EEOC charge was filed) are barred by the statute of limitations. The "like or reasonably related" doctrine does not preclude granting partial summary judgment to the defendant on such time-barred claims because that doctrine does not speak to the applicability of the statute of limitations, but rather to the substantive scope of the lawsuit. See Luddington v. Indiana Bell Tel. Co., 796 F. Supp. 1550, 1565 (S.D. Ind. 1990), aff'd, 966 F.2d 225 (7th Cir. 1992).
In this case, Lacy's 1991 failure-to-promote claims fall outside the 300-day period preceding the filing of the EEOC charge. While those claims may be "like or reasonably related" to those failure-to-promote claims found in Lacy's EEOC charge, Lacy may not rely on the
"like or reasonably related" standard to work backward in time, thus circumventing the statutory filing deadlines. Carried to its logical extension, [such an] argument would abolish the whole notion of limitations -- for any new act of discrimination would dredge up and render actionable every long-outlawed historical occurrence of the same kind.
Proffit v. Keycom Elec. Pub., 625 F. Supp. 400, 408 (N.D. Ill. 1985) (Shadur, J.), overruled on other grounds, Gilardi v. Schroeder, 833 F.2d 1226 (7th Cir. 1987).
3. Continuing Violation
Lacy may not save his 1991 failure-to-promote claims from summary judgment by relying on a "continuing violation" theory. In Stewart v. CPC International, Inc., 679 F.2d 117 (7th Cir. 1982), the court discussed three continuing violation theories. The first theory stems from "cases, usually involving hiring or promotion practices, where the employer's decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the 'violation' occurred." Id. at 120. Courts have tolled the statute of limitations in such cases for equitable reasons similar to those underlying the federal equitable tolling doctrine.
In this case, the first theory is inapplicable. Lacy clearly knew of the asserted violations when he was informed in 1991 that he would neither be promoted nor be allowed to apply for a promotion. Indeed, Lacy has testified that believed that he had been subject to discrimination in May 1991 in connection with his request for a promotion. (See Lacy Dep., at 918 (stating that he "felt it was an act of racial discrimination to require something beyond" the written job requirements)). This is not a case in which it was difficult for the plaintiff to pinpoint the exact day on which an alleged discriminatory act occurred. Thus, Ameritech Cellular's "alleged later failure to promote [Lacy] to other positions does not transform its earlier discriminatory act into a 'continuing' violation." Proffit, 625 F. Supp. at 408.
The second continuing violation theory stems from cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory. Stewart, 679 F.2d at 121. Because Lacy does not allege that Ameritech Cellular had such a policy of discriminating against male or African-American workers, this theory is also inapplicable in this case.
The third theory grows out of cases in which "the plaintiff charges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy. . . . In such cases the challenged practice is evidenced only by a series of discrete, allegedly discriminatory, acts." Id. ; see also Mack v. Great Atl. & Pac. Tea Co., Inc., 871 F.2d 179, 183 (1st Cir. 1989) (referring to this kind of continuing violation as a "serial violation"); Santos v. Rush-Presbyterian-St. Luke's Med. Ctr., 641 F. Supp. 353, 357 (N.D. Ill. 1986) ("pattern of ongoing discrimination").
In a case in which the third theory is relevant, the plaintiff realizes that he is a victim of discrimination only after a series of discrete acts has occurred. The limitations period begins to run when the plaintiff gains such insight. Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 281-82 (7th Cir. 1993). "However, if the plaintiff knew, or 'with the exercise of reasonable diligence would have known after each act that it was discriminatory and had harmed' [him], [he] must sue over that act within the relevant statute of limitations." Jones v. Merchants Nat'l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994) (quoting Moskowitz, 5 F.3d at 282); see also Selan v. Kiley, 969 F.2d 560, 565 (7th Cir. 1992) ("Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?")
In this case, Lacy applied for promotions in May 1991 and June 1991. Each time, Ameritech Cellular specifically told him that he was ineligible for a promotion because the company's policy was to prohibit such promotions until an employee had been with the company for one year.
Thus, the decision not to promote Lacy in 1991 was a discrete action. Though Lacy now claims that he did not feel that Ameritech Cellular's refusals to promote him were discriminatory in 1991, this is directly controverted by his own deposition testimony. (See Lacy Dep., at 918 (stating that he "felt it was an act of racial discrimination to require something beyond" the written job requirements)). Even without this statement, it is clear that Lacy knew, or should have known, that he had not been considered for a promotion and that other individuals had been. This was enough to put Lacy on notice that he had a possible claim. Thus, Lacy may not rely on this, or any, continuing violation theory to revive his 1991 failure-to-promote claims.
4. Waiver of Statute of Limitations Defense
Finally, plaintiff argues that defendant has waived its right to raise the affirmative defense of the statute of limitations because it failed to include the defense in its Answer to plaintiff's Amended Complaint. Under Federal Rule of Civil Procedure 8(c), a defendant is required to set forth affirmative defenses, including the statute of limitations, in his initial pleading. Some courts, however, have liberalized this pleading requirement by holding that, absent prejudice to the plaintiff, a defendant's failure to raise a statute of limitations defense in the initial pleading does not preclude him from later bringing a motion based on that defense. See Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984); cf. Central States, S.E. & S.W. Areas Pension Fund v. Jordan, 1987 U.S. Dist. LEXIS 8616, No. 84 C 8666, 1987 WL 17493, at *2 (N.D. Ill. 1987) (finding that plaintiff was not prejudiced by allowing defendant to assert statute of limitations defense in its summary judgment motion), rev'd on other grounds, 873 F.2d 149 (7th Cir. 1989); see generally 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 1278, at 477-505 (1990). Thus, if the defendant asserts the statute of limitations as an affirmative defense before or at trial, it is not waived. Cf. United States v. DeTar, 832 F.2d 1110, 1114 (9th Cir. 1987) (criminal case).
In this case, Ameritech Cellular did not assert the statute of limitations as an affirmative defense in its Answer. It has, however, raised that defense in its motion for summary judgment. Lacy has not claimed that he was prejudiced by Ameritech Cellular's failure to raise the statute of limitations as an affirmative defense. The court therefore concludes that the defense has not been waived.
For the reasons stated above, the court grants partial summary judgment to defendant on plaintiff's 1991 failure-to-promote claims.
B. 1991 and March 1992 Sexual Harassment Claims
As with his 1991 failure-to-promote claims, defendant argues that Lacy's allegations that Smith sexually harassed in 1991 and in March 1992 are time-barred because they precede April 30, 1992 (i.e., they occurred more than 300 days before he filed his EEOC charge). Unlike the failure-to-promote claims, however, the court finds that Lacy's sexual harassment allegations are not time-barred to the extent that they relate to his hostile environment claim.
In the context of a hostile environment action, the failure to file a complaint within 300 days of each alleged sexually hostile act is not fatal to a plaintiff's cause of action. "Acts of harassment that create an offensive or hostile environment generally do not have the same degree of permanence as, for example, the loss of promotion." Waltman v. International Paper Co., 875 F.2d 468, 476 (5th Cir. 1989). While each alleged act of sexual harassment may be noticeable, it is the cumulative effect of these discrete acts that creates the allegedly hostile work environment. In recognition of this principle, numerous courts have held that untimely acts of hostile environment sexual harassment should not be dismissed when connected with timely claims of sexual harassment. See Waltman, 875 F.2d at 476 (holding that untimely claims of hostile environment sexual harassment are actionable under continuing violation theory); Hardy v. Fleming Food Cos., Inc., 1996 U.S. Dist. LEXIS 3923, Civ. A. No. H-94-3759, 1996 WL 145463, at *11-12 (S.D. Tex. Mar. 21, 1996) (same); Engelmann v. National Broad. Co., Inc., 1996 U.S. Dist. LEXIS 1865, No. 94 Civ. 5616, 1996 WL 76107, at *12-15 (S.D.N.Y. Feb. 22, 1996) (same); Hurley v. Atlantic City Police Dep't, 1995 U.S. Dist. LEXIS 20608, No. Civ. A. 93-260, 1995 WL 854478, at *7 (D.N.J. Aug. 4, 1995) (same); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 877-78 (D. Minn. 1993) (same); cf. West v. Philadelphia Elec. Co., 45 F.3d 744, 756-57 (3d Cir. 1995) (holding that untimely claims of racially hostile environment were actionable under continuing violation theory and stating that "a hostile work environment claim should be addressed in the 'totality of the circumstances'"). Contra Desrosiers v. Great Atlantic & Pacific Tea Co., Inc., 885 F. Supp. 308, 312-13 (D. Mass. 1995) (untimely claims of hostile environment sexual harassment known by the plaintiff before the EEOC statute of limitations are not actionable).
In this case, Lacy has alleged that Smith's sexual harassment began in 1991. The incidents that occurred in 1991 were not sufficient, in and of themselves, to constitute hostile work environment sexual harassment. For example, while Smith's positioning of herself next to Lacy in a meeting may have caused Lacy discomfort, he could not have brought an actionable claim based on that incident at the time. Likewise, Smith's comments to him in April 1991 regarding her predilection to do "crazy and wonderful things" when she was drinking are more properly seen as part of an overall pattern of hostile environment sexual harassment. The court therefore concludes that Lacy's pre-April 1992 sexual harassment allegations are not time not time barred to the extent that they relate to his hostile environment claim. If the court finds that there is a genuine issue of fact as to the truth of those allegations, Lacy may then rely on them in an attempt to create a genuine issue of fact regarding his hostile environment sexual harassment claim. However, plaintiff may not rely on those incidents to support his quid pro quo claim.
IV. Defendant's Substantive Arguments for Summary Judgment
The court now turns to defendant's substantive arguments as to why summary judgment should be granted on each of plaintiff's remaining claims.
A. Methods of Proof in Employment Discrimination Claims
1. Direct Method
The first method for proving employment discrimination is the "direct" method, which relies on both direct and circumstantial evidence of discrimination. Direct evidence of discrimination is evidence "which can be interpreted as an acknowledgment of discriminatory intent by the defendant or its agents" without reliance upon inference or presumption. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). In contrast, circumstantial evidence is evidence that provides "a basis for drawing an inference of intentional discrimination." Id. Lacy has not elected to prove his discrimination claims using the direct method.
2. Burden-Shifting Method
The alternative, burden-shifting method of proof involves a three-step analytical process. The plaintiff has the initial burden of establishing a prima facie case of discrimination (step one). If a prima facie case is established, a presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for its action (step two). St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). If the employer articulates such a reason, the presumption dissolves and the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's proffered reason was a pretext (step three). Fuka v. Thomson Consumer Elec., 82 F.3d 1397, 1404 (7th Cir. 1996); Wolf v. Buss (America), Inc., 77 F.3d 914, 919 (7th Cir. 1996); Oxman v. WLS-TV, 846 F.2d 448, 453 (7th Cir. 1988); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984). Although the burden of production shifts between plaintiff and defendant under this approach, the plaintiff at all times retains the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him." Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir. 1995) (citing St. Mary's Honor Ctr., 509 U.S. at 507, 113 S. Ct. at 2747); see also Mills v. First Fed. Sav. & Loan Ass'n, 83 F.3d 833, 843 (7th Cir. 1996).
Generally, to establish a prima facie case of discrimination, a plaintiff must prove that (1) he was a member of the protected class; (2) he was doing his job well enough to meet his employer's legitimate expectations; (3) he suffered from an adverse employment action; and (4) similarly situated employees outside of his protected class were treated more favorably. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir. 1994); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). However, the elements of a prima facie case are not rigidly established, and may be modified to address the nature of the particular discrimination claim.
See, e.g., Kralman v. Illinois Dep't of Veterans' Affairs, 23 F.3d 150, 153 & n.2 (7th Cir. 1994).
Pretext, in turn, is more than a mistake; it means "a lie, specifically a phony reason for some action." Wolf, 77 F.3d at 919; Mills, 83 F.3d at 845. To establish pretext, a plaintiff must "specifically refute the facts which allegedly support the employer's proffered reasons." Mills, 83 F.3d at 845 (quotation omitted). A plaintiff may do so directly by presenting evidence that the employer was more likely than not motivated by a discriminatory reason, or indirectly by presenting evidence that challenges the credibility of the employer's explanation.
Id.; Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir. 1995); Robinson v. PPG Indus., 23 F.3d 1159, 1163 (7th Cir. 1994). To challenge the credibility of the proffered explanation under the indirect method, a plaintiff must demonstrate (1) the proffered reasons are factually baseless; (2) the proffered reasons were not the actual motivation for the adverse employment action; or (3) the proffered reasons were insufficient to motivate that adverse employment action. Wolf, 77 F.3d at 919; Collier, 66 F.3d at 892.
A plaintiff does not attack the credibility of his employer's proffered explanation by showing that his employer acted incorrectly or undesirably in instituting the employment action; rather, the plaintiff must show that his employer did not honestly believe the reasons it gave for taking that action. Wolf, 77 F.3d at 919. As a result, challenging the wisdom or prudence of an employer's decision is insufficient to establish pretext because the court
does not sit as a super-personnel department that reexamines an entity's business decisions. The question is not whether the [employer] exercised prudent business judgment, but whether [the employee] has come forward to refute the articulated, legitimate reasons for his discharge.