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December 31, 1997

KAREN SAVINO, Plaintiff,

The opinion of the court was delivered by: CASTILLO

 Plaintiff Karen Savino brought this action against the defendant, the C.P. Hall Company, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Savino alleges that she was sexually harassed by her supervisor, William Popper, in violation of Title VII's prohibition against discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Specifically, Savino claims that Popper conditioned job benefits upon her submission to his sexual requests and created a hostile work environment based upon her gender. Savino further alleges that after she complained about the harassment, the defendant retaliated against her by withholding two accounting positions from her and denying her a raise in violation of 42 U.S.C. § 2000e-3(a)(1).

 Currently before the Court is C.P. Hall's motion for summary judgment on all counts of the complaint. C.P. Hall argues that Savino has presented insufficient evidence to support her sexual harassment claims. In addition, C.P. Hall asserts that it had valid, nonpretextual reasons for not promoting Savino to the accounting positions and not offering her a raise. After careful review, we deny defendant's motion in part and grant the motion in part.


 We begin by presenting the facts in a light most favorable to the plaintiff. *fn1" In response to a newspaper advertisement, Savino applied for a part-time position with C.P. Hall. Pl.'s Add'l Facts P 3. William Popper ("Popper"), Plant Engineer for C.P. Hall's maintenance department, interviewed Savino and ultimately hired her as his part-time maintenance clerk. Def.'s Facts PP 4, 22; Pl.'s Add'l Facts PP 3, 5. While Popper made the decision to hire Savino, Cynthia Green, C.P. Hall's Human Resources Supervisor, actually offered Savino the position. Def.'s Facts PP 7, 21, 25; Pl.'s Facts P 21; Pl.'s Add'l Facts P 5. *fn2"

 On April 1, 1995, Savino began working at C.P. Hall's "5851 facility" in Bedford Park. *fn3" Pl.'s Facts P 36; Def.'s Facts P 23. Savino's duties included some computer work, writing up and closing work orders, clerical work, and some bookkeeping duties, such as maintaining expense reports, checking invoices, and reconciling monthly expenses. Pl.'s Facts PP 31-33. Savino shared an office with Popper, and their desks were "very close." Pl.'s Add'l Facts P 8; Def.'s Facts P 39. As a part-time employee, Savino worked approximately 20 hours per week (Pl.'s Facts P 30) and did not receive any benefits. Def.'s Facts P 38.

 The Alleged Harassment

 Shortly after Savino started working at C.P. Hall, she noticed that her supervisor's behavior was somewhat odd. She often caught Popper staring at her. Instead of turning away in embarrassment, Popper would simply smile at her. Popper then began following Savino around the office, timing her breaks so that he could visit with her. Pl.'s Add'l Facts PP 9-11. In an apparent attempt to isolate Savino, Popper discouraged her from interacting with others in the department, warning Savino that they were not to be trusted. Pl.'s Add'l Facts P 10. While not overtly objectionable, Popper's behavior made Savino feel uncomfortable.

 Things soon began to escalate, however, and Savino alleges that Popper's behavior progressed from inappropriate to blatantly offensive and physical. For example, Savino claims that Popper: 1) attempted to put packets of coffee down her shirt, id. P 15; 2) showed Savino a soap dispenser, referred to it as a "dick," and asked her if she wanted to "insert it into the washroom," id. P 16; 3) made remarks about "oral sex" and touched her legs while changing the computer paper near Savino's desk, id. P 17; 4) told Savino that she had a "nice ass," Pl.'s Add'l Facts P 18; 5) responded to a radio program that asked "is there a Mount Nip or Nipple in the United States?", by stating "yes, [Savino], and I would like to get on top of it and suck it," Def.'s Facts P 54; Pl.'s Add'l Facts P 20; 6) attempted to give Savino neck rubs, Pl.'s Add'l Facts P 22; 7) viewed a Playboy magazine in her presence, id. P 23; 8) called Savino at home and asked her to watch him umpire baseball games, id. P 24, and drove by Savino's house, id. P 21; 9) "volunteered" Savino to be secretary of the Safety Committee, so that they "could be together," Pl.'s Add'l Facts P 27; Pl.'s Dep. at 186; and 10) often made disparaging remarks about his wife and marriage, Pl.'s Add'l Facts P 50. Savino informed Popper in no uncertain terms that his comments and advances were unacceptable. Pl.'s Add'l Facts PP 15, 20.

 Then, in an incident that Savino claims further aggravated the situation, Popper attempted to force Savino to go out to dinner with him while his wife was out of town. Despite her repeated refusals, Popper persisted, insisting that she join him for dinner. Savino ultimately enlisted the aid of co-worker Mark Randazzo, who met Savino in the office at the end of the workday. Undeterred, Popper told Mr. Randazzo that he was excused, and blocked Savino's exit, insisting that "we'll go out to dinner tonight." Pl.'s Add'l Facts PP 29-32, 74; Def.'s Facts P 249. Savino was able to leave the office, but felt compelled to call Popper later that evening to confirm that the two would not be having dinner together. Instead, Savino and Randazzo went for coffee, and Savino suspected that Popper followed them.

 Savino contends that declining Popper's dinner invitation was the last straw as far as Popper was concerned and, as a result, he began a campaign to discredit her work. Specifically, Popper unjustifiably criticized her work, unnecessarily reminded her to do her basic job duties, withheld work orders from Savino and then blamed her for not closing them, ripped up her time card (claiming it was irrelevant because Savino did not make enough money anyway), made snide remarks, did not let her turn on the office air-conditioner, left her "unprofessional" notes, and generally acted like a "jealous boyfriend." Pl.'s Add'l Facts PP 38-41; Def.'s Facts P 55; Pl.'s Dep. at p. 176. Before he pressured Savino to join him for dinner, Popper allegedly told Savino that he would speak to the plant manager about obtaining health benefits for her. But after Savino declined his dinner request, Popper claimed he could not intervene on her behalf. Pl.'s Add'l Facts P 42; Def.'s Facts P 153.

 While these incidents greatly upset Savino, she initially did not report her supervisor because she was afraid of being perceived as a troublemaker. Id. PP 15-17, 20-21. In addition, Popper had warned Savino that they would both lose their jobs if Savino filed a complaint against him. Pl.'s Add'l Facts PP 48-50. Savino decided that the best course of action was to transfer out of Popper's department. Savino notified Green in the Human Resources Department of her interest in two posted positions. Green called Savino back and left a message for Savino with Popper concerning one of the positions, but Popper allegedly hid the message and Savino did not discover the note until the following day. Savino eventually interviewed for this position, but it was offered to another candidate with better qualifications. Pl.'s Add'l Facts PP 43-45.

 Savino's July 1995 Complaint to C.P. Hall

 Because Savino was not offered either of the posted positions, making a transfer out of Popper's department unlikely, she decided that her only option was to file a formal complaint against Popper. On July 26, 1995, Savino informed Leslie Mullin, Plant Manager and Popper's supervisor, of the numerous incidents of Popper's harassment. In response, Mullin gave Savino a copy of C.P. Hall's sexual harassment policy (Pl.'s Add'l Facts PP 46-47; Def.'s Facts P 52, 57-58) and notified Green and James Roach, Corporate Manager of Human Resources, of Savino's complaint. Def.'s Facts PP 8, 59.

 The following day, Savino met with Green and described the offensive incidents, including Popper's conduct after Savino declined his dinner invitation. Id. PP 65-68, 71-73, 76-80. Green prepared detailed written notes of her meeting with Savino. Green's notes indicate that Popper had warned Savino that they would lose their jobs if she told anyone about his behavior, (Pl.'s Add'l Facts PP 48-50) and that Savino's main goal was to "get away from [Popper]." Id. P 51. Savino requested that Popper be told about her complaints, although it is disputed whether Savino agreed to continue working for Popper if necessary. Pl.'s Add'l Facts P 51; Pl.'s App. Ex. C. After her meeting with Savino, Green reported the substance of their discussion to Roach. Def.'s Facts P 85.

 On July 28, 1995, Roach and Mullin met with Popper to discuss Savino's complaint. Def.'s Facts P 86. While Popper denied certain incidents (Id. P 93), he admitted that he discussed his marital problems with Savino, sometimes stared into space, "jokingly" tore up Savino's time card, replaced the printer paper near Savino's desk, called Savino at home (although the purpose of these calls is disputed), and that he asked her out to dinner. Id. PP 90-92, 94, 97-99, 101. In addition to interviewing Popper, Mullin interviewed Brian Shimizu, an employee in the maintenance department, who had overheard Popper ask Savino for a back rub. Def.'s Facts PP 119, 121. Roach concluded that while there had been some occasional vulgar language between Popper and Savino (although Savino denied using vulgar language around Popper), the evidence failed to substantiate Savino's complaint. Def.'s Facts PP 107, 111; Pl.'s Facts P 107.

 At the conclusion of the investigation, Roach gave Popper a "strong verbal warning" that Savino's complaint was a serious charge and that a substantiated charge of sexual harassment could lead to disciplinary action, including discharge. Roach informed Popper that he had engaged in unprofessional conduct and poor judgment, that Popper's further dealings with Savino should be strictly professional, and that "this type of problem" would not be tolerated. Id. PP 108, 112. Popper responded that he understood Roach's warning and there would be no further problems. Id. P 109. Popper did not receive a written warning at that time, but was told that if Savino's allegations were substantiated, he would receive a written reprimand. Id. P 129. Roach allegedly informed Savino that her complaint would be aggressively and appropriately dealt with, and if she suffered any retribution by Popper, she should so inform someone at C.P. Hall. Id. P 122. However, C.P. Hall failed to inform Savino of the status or outcome of the investigation. Pl.'s Add'l Facts PP 56, 69; Def.'s Facts PP 123, 228.

 Recognizing a need to "separate" Popper and Savino, Roach and Mullin moved Savino out of Popper's office to an area in the accounting department just outside Mullin's office. Def.'s Facts PP 113, 117. Although Savino was separated from Popper, he remained her supervisor and gave her work assignments. Pl.'s Add'l Facts PP 52, 53; Def.'s Facts P 130. Furthermore, although Popper was supposed to send Savino's assignments through inter-office mail, he brought them directly to Savino. Def.'s Facts P 132; Pl.'s Add'l Facts PP 52, 62; Pl.'s Dep. at 143.

 Unlike her office in the maintenance department, Savino's new work station did not have a telephone. Def.'s Facts P136; Pl.'s Add'l Facts P 54. Although Savino was not displeased with her new surroundings, she felt like she was being "watched" because she was placed just outside of Mullin's office. Pl.'s Add'l Facts P 52. However, the aesthetics of Savino's office surroundings were much improved. While bare floors in the maintenance office were stained with grease and oil, her new office was carpeted, had better heating and air conditioning, and did not require Savino to wear a hard hat. Def.'s Facts PP 116, 158-59.

 In October 1995, the beginning of C.P. Hall's fiscal year and approximately seven months after Savino's start date, Savino's hours were increased from 20 hours per week to 25 hours per week. This increase enabled Savino to receive employment benefits such as health insurance, at a cost to C.P. Hall of approximately $ 3.46 an hour. Def.'s Facts P 156-157; Pl.'s Add'l Facts P 53. Savino claims that she was allowed to work the additional five hours for the accounting department, Pl.'s Add'l Facts P 53, but remained under Popper's supervision for the remaining twenty hours. Id. Despite this, Savino claims that Popper inappropriately withheld safety gift certificates from Savino, using the false excuse that Savino was no longer in his department. Id. PP 77-80.

 In an effort to determine whether Popper had been punished following the 1995 investigation, Savino contacted Green and Mullin requesting copies of notes taken during the investigation. Def.'s Facts P 175; Pl.'s Add'l Facts PP 63, 65. Green showed Savino some of her notes, which revealed that Popper had been issued a verbal warning, but did not allow Savino to copy them. Pl.'s Add'l Facts P 66.

 Savino's April 1996 Complaint to C.P. Hall

 In April 1996, Savino complained that Popper was continuing to harass her. Savino informed Mullin that other employees had heard Popper refer to Savino as a "bitch" and as a "blonde whore from hell," and that Popper left her notes unfairly critical of her job performance. Def.'s PP Facts 160-163; Pl.'s Add'l Facts PP 60, 61, 64. Mullin informed Savino that he would investigate her accusations and immediately informed Roach of Savino's complaint. Def.'s Facts PP 166-167.

 In response to Savino's latest complaint, Mullin arranged for two separate meetings-- one between Mullin and Popper, and the other between Green and Savino. Id. PP 168, 174, 176-178. During Mullin's meeting with Popper, Popper admitted that "perhaps" he had referred to Savino as a "bitch" a few times, and at least once as a "blonde whore." Id. PP 169, 193. During Savino's meeting with Green, Savino disclosed an "unprofessional" note that Popper had left her. Id. P 179. Savino requested a meeting with Roach, Mullin, and Popper so that she could confront Popper with her accusations, Pl.'s Add'l Facts P 67, and asked to be transferred from Popper's department. Pl.'s Add'l Facts P 71. Green told Savino that she believed Popper's behavior was inappropriate, and that if it were up to her, Green would have "gotten rid of Popper a long time ago." Def.'s Facts P 182; Pl.'s Add'l Facts P 65. However, Savino was told she had to remain working in Popper's department, and Green never responded to Savino's request for a face-to-face meeting.

 Numerous coworkers were interviewed as part of C.P. Hall's investigation of Savino's April 1996 complaint. Def.'s Facts PP 184, 190, 239. One of these coworkers, Mark Randazzo, corroborated Savino's claim that Popper was making disparaging remarks about Savino. Def.'s Facts PP 184, 251; Pl.'s Add'l Facts PP 72, 73. During this investigation, Randazzo also corroborated some of the allegations Savino made during the July 1995 investigation, specifically, that Popper restrained Savino from leaving the office without first accepting his dinner invitation, that Popper apparently followed Savino and Randazzo when they went out for coffee, and that Savino felt compelled to purchase a tape recorder to "catch" Popper's inappropriate remarks on tape. Pl.'s Add'l Facts PP 75-76; Pl.'s App. Ex. G. C.P. Hall had not interviewed Randazzo during the July 1995 investigation.

 On May 10, 1996, Mullin, Green, and Roach met with Popper and informed him that his "dinner date" invitation in 1995 was "unprofessional," and his disparaging comments about Savino showed "poor judgment" on his part. As a result, they suspended Popper for one week without pay. Def.'s Facts PP 195-196, 198. Prior to the suspension, however, Savino had filed a complaint against C.P. Hall with the E.E.O.C. Savino believes that C.P. Hall would not have taken this disciplinary stance in the absence of her E.E.O.C. complaint. After receiving the E.E.O.C.'s notice of a right to sue, Savino filed this suit.

 C.P. Hall's Alleged Retaliation

 As a result of her complaints, Savino contends that she suffered retaliation. First, Savino asserts C.P. Hall failed to give her a raise on her anniversary date, April 1, 1996, because she complained against Popper. When Savino raised the issue with Mullin, however, he explained that C.P. Hall implements annual raises at the beginning of its fiscal year, in October, and not on the anniversary dates of employment. Id. P 236. Mullin noted that the benefits Savino received in October 1995 were considered a raise and, as such, Savino was an exception to C.P. Hall's general practice of denying raises to part-time employees employed less than a full year. Def.'s Facts PP 172, 173; Pl.'s Facts P 171; Pl.'s Add'l Facts P 55 It is undisputed that C.P. Hall neglected to inform Savino that the benefits were awarded in lieu of a raise. However, C.P. Hall demonstrates that it had engaged in a similar practice in the past. As an example, C.P. Hall points to another part-time employee who did not receive a raise at the beginning of the fiscal year because she was employed for less than one year. This other employee received benefits in lieu of a raise the following year, and finally received her first raise 25 months after she was hired. Def.'s Facts P 243. C.P.

 Savino then charges that C.P. Hall wrongfully withheld two accounting positions from her. Savino claims that she was not able to apply for an accounting position that became available shortly after her 1995 complaint because it was never posted, even though Roach knew that Savino wanted to be transferred from Popper's department. Pl.'s Add'l Facts P 81. Savino also expressed interest in an accounting position that became available in 1996, shortly before her April 1996 complaint.

 The first position, Regional Accountant at C.P. Hall's 7300 facility, became available and was filled in September 1995. Zielinski Aff. P 3. The position was filled after Gary Zielinski, C.P. Hall's Regional Manager, was directed to reduce his "headcount" at the 7300 facility for the 1996 fiscal year, which began in October 1995. Def.'s Facts P 200. Prior to posting the vacancy, Zielinski contacted Roach and asked if he could move Maria Morrow, who had a degree in Business Administration and two years' experience under Zielinski, into the Regional Accountant position. Def.'s Facts P 200; Pl.'s Add'l Facts P 82; Pl.'s App. Ex. I at KS 438. Roach agreed and Morrow was moved into the Regional Accountant position to reduce Zielinski's headcount. Def.'s Facts P 200. Zielinski -- who worked at another facility -- did not know of Savino or her July 1995 complaint at the time he requested the transfer for Morrow. Zielinski Aff. P 6.

 The second opening was the Plant Accountant position at the 5851 facility. The position became available when Shirly Majewski decided to retire. Pl.'s Add'l Facts P 85. Although Majewski did not have a college degree when she held the position, Linda Martinek, Assistant Controller for C.P. Hall, decided to upgrade the position to require a four-year college degree in accounting, two years' experience in a manufacturing environment, and preferably some supervisory experience. Def.'s Facts P 212; Pl.'s Add'l Facts P 86; Martinek Aff. P 5. Martinek did not post the position internally because she did not believe that any current employees were qualified to fill the vacancy. Def.'s Facts P 210.

 Although Savino did not yet have her degree in accounting (but would receive it in August 1996), she did have some experience in accounting and arguably would have qualified for the position under the old job description. Def.'s Facts PP 12-14, 16, 33-35, 207; Pl.'s Facts PP 12, 14; Pl.'s Add'l Facts PP 2, 87. In April 1996, Martinek began the interview process, interviewing eight to twelve candidates. Def.'s Facts PP 213, 218. Although Martinek had concerns that Savino was not qualified for the position, she agreed to interview Savino if time permitted. Id. PP 215-216. She first attempted to do so after Savino had already left for the day. Id. P 217. On a later occasion, Green approached Savino about interviewing that day, but Savino claimed that she was not prepared and did not want the interview just to be pacified. Def.'s Facts P 219; Pl.'s Add'l Facts P 88. Ed Wier, an accountant with a four-year degree and ten years of experience, a candidate admittedly more qualified than Savino, was ultimately selected for the position. Def.'s Facts 221; Pl.'s Add'l Facts P 89. It is undisputed that Martinek did not learn of Savino's complaints against Popper until May 1996, after Martinek had upgraded the job's requirements. Def.'s Facts P 224.

 C.P. Hall's Sexual Harassment Policy

 In 1993, Roach distributed C.P. Hall's sexual harassment policy to all managers and supervisors, instructing them to disseminate the sexual harassment policy at group meetings. Def.'s Facts PP 45, 49-50. The policy is also posted at all C.P. Hall facilities. Id. P 44. Under the policy, an employee may complain of sexual harassment to the corporate human resources department, his or her supervisor, or any other C.P. Hall employee. However, the corporate human resources department must be notified of any complaint and is ultimately responsible for investigating the charges. Id. PP 46-48, 229, 231, 232. The ...

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