summoned Porter to the office and gave him a write-up for the incident. Crenshaw felt at the time that Delray's response was appropriate. About one week later, Crenshaw was in the women's bathroom with the door locked when Porter popped the lock open and came in. Porter allegedly attempted to grab Crenshaw, who pushed him away and ran to the front of the store. She reported this incident to Theoharris and two other supervisors, and Porter again received a written reprimand. Porter did not harass Crenshaw again after this incident. Furthermore, it was common for men to use the women's washroom at Delray when it was unoccupied, and the door lock could be easily opened from the outside.
On or around July 4, 1996, Crenshaw was waiting in the parking lot for a ride home from work, when she was approached by Alex Delaney ("Delaney"), a parking lot attendant. He told Crenshaw that the pants she was wearing "made his groins growl" and that he wanted to take her to the Taste of Chicago and then to a hotel. Crenshaw related that Delaney wanted to "eat me out" and "do all types of tricks with me". Crenshaw did not report this incident because she did not think it was necessary. Delaney did not harass Crenshaw after this point.
Crenshaw also asserts that a supervisor, Mike Guerin ("Guerin") harassed her as well. Crenshaw alleges that Guerin often put his arm around her, told her that she was his favorite girl, and said that he would take care of her. Guerin never said anything sexual to Crenshaw, and he did not touch her anywhere else on her body.
Finally, in early August 1996, Crenshaw was surrounded in the parking lot by supervisors "Paul" and "Charles" and managers Jim Keslinke and "Coaster". The men all yelled at her, threatened her job, and told her that her job was more important than caring for her sick son. Crenshaw was very scared, and ran to her mother's car. She left Delray and did not go back. On August 11, 1996, Crenshaw's employment with Delray ended. Immediately before her employment ended, Crenshaw was suspended for three days for not reporting to work; in all, she had been disciplined by Delray on seven different occasions. On July 23, 1996, Crenshaw filed the present suit against Delray, alleging that she was sexually harassed and retaliated against, in violation of Title VII of the Civil Rights Act of 1964. In response, Delray has filed this present motion for summary judgment. Before we turn to its merits, we will outline the legal standard which guides our inquiry.
Summary judgment is appropriate when the record, viewed in a light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Once a motion has been filed for summary judgment, the burden shifts to the nonmoving party to show through specific evidence that a triable issue of fact remains on issues on which the nonmovant bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence. Id. With this in mind, we turn to the motion before us.
In her complaint, Crenshaw alleges that she was discriminated against on the basis of her sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). A plaintiff can prove a Title VII claim by either direct evidence or by the indirect method of proof set out under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under the direct method of proof, the plaintiff must show that her protected characteristic (i.e., sex) was a motivating factor in the challenged employment action. Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989). To avoid liability, the defendant must prove by a preponderance of the evidence that it would have taken the same action if the protected characteristic had not been considered. Id. Of course, direct evidence of the factors motivating an employment decision is not always readily available. Therefore, the Supreme Court has established an alternative method of proof that relies on indirect evidence of discrimination.
Under the indirect method of proof, the plaintiff first must establish a prima facie case of discrimination. Once she does so, the burden of production shifts to the defendant to show a legitimate, non-discriminatory reason for the materially adverse employment action. Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 135 (7th Cir. 1993), citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the defendant is able to produce a legitimate reason for the action, the burden shifts back to Plaintiff to persuade the court that the reason was merely a pretext for the action. Crady, 993 F.2d at 135, citing Konowitz v. Schnadig Corp., 965 F.2d 230, 232 (7th Cir. 1992).
In her complaint, Crenshaw alleges the following as the basis for her action under Title VII:
I have been sexually harassed by defended [sic] on numerous occasions; because of none [sic] compliance to sexual advances I have been retaliated against with none [sic] promotion and pay raises.
See Complaint P 12(f). In her charge filed with the Equal Employment Opportunity Commission ("EEOC"), Crenshaw stated that she felt that she was discriminated against and retaliated against in that a) she was paid less than male cashiers, b) she was subjected to sexual harassment by male co-workers, and c) she was suspended and involuntarily transferred in retaliation for her complaints about sexual harassment. See EEOC Charge, Defendant's Exh. 9. We note these allegations because, in her response to Delray's motion for summary judgment, Crenshaw has apparently abandoned her retaliation claim and instead asserted that she was treated differently simply because she was a woman (and not in retaliation for her actions). Crenshaw's arguments in section B of her brief begin with the following: "Delray also discriminated against Crenshaw by paying her less than other male meat workers..., by condoning a practice of males using the women's washroom..., and by handling disciplinary matters of men and women differently." See Crenshaw's Response at 13. Nowhere in her brief does Crenshaw argue that these actions were taken in retaliation for her reporting the alleged sexual harassment she was enduring. Even though Crenshaw has failed to pursue this claim on summary judgment, we will nonetheless examine the undisputed facts of the case to determine whether the retaliation claim would fail as a matter of law. See Nabozny v. Podlesny, 92 F.3d 446, 457 n.9 (7th Cir. 1996)(district court must examine facts to determine if granting defendants summary judgment on claim left unpursued by plaintiff is appropriate as a matter of law).
As another preliminary matter, we note that most of the incidents of harassment alleged by Crenshaw should not be considered by us in deciding this motion as they were not included in her charge of discrimination filed with the Equal Employment Opportunity Commission. As a general rule, a plaintiff under Title VII "cannot bring claims in a lawsuit that were not included in [the] EEOC charge." Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994), citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). This rule, however, is not without some leeway. A plaintiff does not need to allege in the EEOC charge "each and every fact that combines to form the basis of each claim in [the] complaint." Cheek, 31 F.3d at 500, citing Taylor v. Western and Southern Life Ins. Co., 966 F.2d 1188, 1195 (7th Cir. 1992). Rather, an EEOC charge encompasses the claims in the complaint (or a reply to a summary judgment motion) if they are "like or reasonably related to the allegations of the charge and growing out of such allegations." Cheek, 31 F.3d at 500, quoting Jenkins v. Blue Cross Mutual Hospital Ins. Inc., 538 F.2d 164, 167 (7th Cir.)(en banc), cert. denied, 429 U.S. 986, 50 L. Ed. 2d 598, 97 S. Ct. 506 (1976)(other citations omitted).
This test is satisfied if the allegations in the charge and the claims set forth by the plaintiff have a reasonable relationship and the claims "can reasonably be expected to grow out of an EEOC investigation of the allegations in the charge." Cheek, 31 F.3d at 500; see also Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995). In this case, Crenshaw's EEOC charge was filed on January 18, 1996 and asserts that she had been discriminated against between August 1, 1995 and December 19, 1995. See Defendant's Exh. 9.
In her complaint, Crenshaw asserts that she received a right-to-sue letter from the EEOC on May 31, 1996. Id. There is no indication of any other charge having been filed with the EEOC or of Crenshaw having received any other right-to-sue letter from the EEOC regarding events after December 19, 1995. As such, any events which took place after December 19, 1995 were not alleged in her EEOC charge, and any investigation by the EEOC would not have focused on, or likely turned up, these events. Accordingly, any acts which took place after December 19, 1995 were not covered by Crenshaw's charge or right-to-sue letter and we should not address them at this time. However, Delray does not raise this argument in its brief, and as we noted the original complaint is currently missing from the Clerk's file. Therefore, we will consider all of the incidents alleged by Crenshaw in making our decision, since we must take the asserted facts in a light most favorable to the non-moving party.
With these matters resolved, we move to a discussion of the merits of the present motion.
I. Hostile Work Environment
First, Crenshaw asserts that she was sexually harassed at work, thus creating a hostile work environment, in violation of Title VII. There is no indication that Crenshaw is attempting to prove her case via the direct method; as such, we will proceed in our analysis using the McDonnell Douglas framework. First, as discussed above, Crenshaw must establish a prima facie case. To establish a prima facie case for hostile work environment sexual harassment, a plaintiff must show: (1) that she was a member of a protected class; (2) that she was subjected to unwelcome verbal or physical conduct of a sexual nature; (3) that the harassment was based on sex; (4) that the harassment was sufficiently severe or pervasive to alter the conditions of plaintiff's employment; and (5) that the employer knew or should have known of the harassment and unreasonably failed to take appropriate corrective action. Swanson v. Elmhurst Chrysler Plymouth, Inc., 882 F.2d 1235, 1238 (7th Cir. 1989), cert. denied, 493 U.S. 1036, 107 L. Ed. 2d 774, 110 S. Ct. 758 (1990)(setting forth first four elements); Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990)(providing this formulation of fifth element). See also Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1222 (8th Cir. 1997). Because we find that Crenshaw has failed to prove a prima facie case, her claim fails as a matter of law.
There is apparently no argument by Delray that Crenshaw has established the first three elements of her prima facie case, and we find that she has. As a woman, Crenshaw is a member of a protected class. The undisputed evidence also shows that she was subjected to unwelcome verbal and physical contact of a sexual nature, and that the harassment was based on Crenshaw's sex. Delray argues, however, that Crenshaw has failed to present evidence supporting the fourth and fifth elements of her case. We will discuss each of these elements in turn below.
First, Crenshaw must have established that the harassment she endured was severe and pervasive and altered her conditions of employment. When assessing whether allegedly sexually harassing conduct was sufficiently severe to alter the terms or conditions of the plaintiff's employment, we must evaluate the situation from both an objective and a subjective perspective. Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993), cert. denied, 510 U.S. 1111, 127 L. Ed. 2d 375, 114 S. Ct. 1054 (1994). Thus, the plaintiff must establish "that she was adversely affected by the conduct and that a reasonable person would also have been adversely affected." Id. However, isolated instances of inappropriate conduct do not constitute sexual harassment; "the offensive conduct must be persistent." Id., quoting Downes v. F.A.A., 775 F.2d 288, 293 (Fed.Cir. 1985). Delray argues that the alleged instances of harassment against Crenshaw were not persistent and do not constitute sexual harassment for purposes of Title VII; Crenshaw, on the other hand, alleges that they are sufficient. However, we will not examine this conflict in depth because we find that even if Crenshaw had established that the alleged conduct was severe enough to have changed the conditions of her employment, Delray appropriately dealt with the alleged offenders and Crenshaw cannot prove the fifth element of her prima facie case.
For the final element of her case, Crenshaw must prove that Delray knew of or should have known about the alleged harassment and failed to take appropriate corrective action. It is established that the standard applicable to the liability of employers for the acts of its employees in the sexual harassment context "closely resembles the 'fellow servant' rule." Guess, 913 F.2d at 465. As such, the employer,
provided it has used due care in hiring the offending employee in the first place, is liable for that employee's torts against a coworker only if, knowing or having reason to know of the misconduct, the employer unreasonably fails to take appropriate corrective action.