MEMORANDUM OPINION AND ORDER
This action is for alleged sexual harassment under Title VII of the Civil Rights Act of 1964. Pending is Defendant's summary judgment motion. For the reasons set forth below, this court grants the motion as to the hostile work environment claim and denies the motion as to the quid pro quo harassment claim.
Plaintiff Ashieka King ("King") began working for Defendant The Finish Line, Inc. ("The Finish Line") as a part-time salesperson in April 1994 at its retail store located at 701 West Cermack in North Riverside, Illinois. (Def. 12(m) P 1; Pl. 12(n) P 1.) King alleges that the North Riverside store manager, Bryant Bobo ("Bobo"), sexually harassed her.
King's sexual harassment allegations revolve most prominently around an incident which King alleges occurred shortly after beginning work with The Finish Line. King states that Bobo asked King if she wanted to go downstairs with him. (Pl. 12(n) Add. Facts P 5.) While the two were in the store's downstairs area, Bobo tried to kiss King while holding her hands by her side. (Id.) King told Bobo to stop, and he did. (Id. P 5; Def. 12(n) Resp. P 2.) Then, however, King alleges that Bobo unzipped his pants, took his penis out and asked her to touch it. (Id.) King told Bobo to let her out of the basement, and Bobo did so after allegedly telling King not to tell anybody in the store about the incident. (Pl. 12(n) Add. Facts P 5.)
King alleges that Bobo subsequently made additional sexual comments to her. King states that, on one occasion, Bobo approached King in the hallway and asked her whether her boyfriend was "fucking [her] right." (Pl. 12(n) Add. Facts P 6.) During King's first job performance review, King states that Bobo asked whether she "looked at" another manager in the store or "looked at" Bobo, and whether she thought Bobo looked nice. (Id. P 7.) In addition, King states that Bobo continually stared at her. (Id. P 5.)
In mid or late July 1994, Bobo asked King to go to his office to talk with her. (Pl. 12(n) Add. Facts P 9.) At this time, Bobo told King that she had an "attitude problem" and that she needed to shape up how she was acting. (Id.) Before King left, Bobo kissed King on her neck and told her to "get with the program." (Id.) King remained silent and just left Bobo's office. (Id.)
Shortly after the above incident, King's hours were decreased from typically twenty hours per week to about ten hours per week or less. (Pl. 12(n) Add. Facts P 10.)
King maintains that her hours decreased because she did not acquiesce to Bobo's sexual advances. The Finish Line asserts that King's hours decreased because of King's substandard performance and attitude and the normal flexibility of part-time staff schedules.
King worked for about two more weeks after her hours were decreased and then resigned from The Finish Line on August 10, 1994. (Def. 12(m) P 1; Pl. 12(n) P 1.) King states that her humiliation, embarrassment and hurt feelings forced her to quit. (Pl. 12(n) Add. Facts P 13.) On the other hand, King also stated that when she began working for The Finish Fine, she intended to go to college in the fall of 1994. (Def. 12(m) P 2; Pl. 12(n) P 2.)
King never complained of any alleged incidents of sexual harassment at The Finish Line when they occurred or at any time before she left The Finish Line in August 1994. (Def. 12(m) P 5; Pl. 12(n) P 1.) The Finish Line had a sexual harassment policy which informed employees how and to whom to complain of alleged harassment. (Def. 12(m) P 6; Pl. 12(n) P 1.) Among other things, the district manager of The Finish Line, Mark Fogo, visited the store on a weekly basis and was available to hear any problems of store personnel. (Id.)
On March 8, 1996, Plaintiff filed this suit against The Finish Line for sexual discrimination pursuant to 42 U.S.C. § 2000e-2(a)(1).
I. SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate where "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has produced evidence to show that it is entitled to summary judgment, the party seeking to avoid such judgment must affirmatively demonstrate that a genuine issue of material fact remains for trial. LINC Fin. Corp. v. Onwuteaka, 129 F.3d 917, 920 (7th Cir. 1997).
In deciding a motion for summary judgment, a court must construe the evidence in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Nevertheless, the nonmovant may not rest upon mere allegations but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). See also LINC, 129 F.3d at 920. A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "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). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252.
II. SEXUAL HARASSMENT
Title VII prohibits "discrimination . . . against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" 42 U.S.C. § 2000e-2(a)(1). There are two types of sexual harassment: (1) quid pro quo and (2) hostile work environment. Plaintiff argues that both types of sexual harassment have occurred here.
A. QUID PRO QUO HARASSMENT
Quid pro quo harassment occurs in situations "where submission to a supervisor's sexual demands is made a condition of tangible employment benefits." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997). See also Bryson v. Chicago State University, 96 F.3d 912, 915 (7th Cir. 1996). The Seventh Circuit has quoted the E.E.O.C.'s Guidelines on Sexual Harassment, 29 C.F.R. § 1604.11(a), to describe quid pro quo harassment as:
"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when 1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment" . . . [or] "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual."
Bryson, 96 F.3d at 915. See also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986) (noting that E.E.O.C.'s Guidelines on Sexual Harassment "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance"). Here, King essentially alleges that her "rejection" of unwelcome sexual conduct by Bobo was the "basis for" adverse employment action against her.
The Seventh Circuit has stated that a multiple factor test employed by some circuits provides a "useful framework" for undertaking a quid pro quo analysis. Bryson, 96 F.3d at 915. Under this test, the plaintiff must show that: (1) she or he is a member of a protected group, (2) the sexual advances were unwelcome, (3) the harassment was sexually motivated, (4) the employee's reaction to the supervisor's advances affected a tangible aspect of her employment, and (5) respondeat superior has been established. Id.
Here, there is no dispute that King satisfies the first three factors. Factor five, the respondeat superior element, is automatically satisfied here as the Seventh Circuit now holds an employer is subject to strict liability where "submission to a supervisor's sexual demands is made a condition of tangible employment benefits." Perry, 126 F.3d at 1013. See also Jansen v. Packaging Corp. of Am., 123 F.3d 490, 494-95 (7th Cir. 1997) (per curiam). Therefore, the fourth factor is the critical element in this summary judgment motion.
To satisfy the fourth factor, King must demonstrate that: (1) a tangible aspect of employment benefit was adversely affected, and (2) that this effect was a result of her refusal to submit to Bobo's demands. See Bryson, 96 F.3d 912 at 916.
The court will address the two parts in turn.
First, King must demonstrate an adverse employment action. "Whether an employee has suffered a materially adverse employment action will normally depend on the facts of each situation." Bryson, 96 F.3d at 916. The Seventh Circuit has stated that:
in some cases, for example when an employee is fired, or suffers a reduction in benefits or pay, it is clear that an employee has been the victim of an adverse employment action. But an employment action does not have to be so easily quantified to be considered adverse for our purposes. 'Adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well.'