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May 1, 1998

BRUCE C. BACON, Plaintiff,

The opinion of the court was delivered by: BUCKLO


 The plaintiff, Bruce Bacon, sued the defendant, the Art Institute of Chicago ("AIC"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Mr. Bacon alleges a hostile working environment and retaliation. The AIC moves for summary judgment. For the following reasons, the motion is granted in part and denied in part.


 The AIC operates an institute for the purpose of the advancement, public display, and protection of art. Mr. Bacon is a thirty-five year old man who, until his resignation in 1993, worked as a part-time housekeeper *fn1" at the School of the Art Institute. Mr. Bacon began employment with the AIC in 1989, two years after an automobile accident that caused brain damage and limited his physical abilities. In 1990, Mr. Bacon began working in the AIC's Columbus Drive building. He reported to lead housekeeper Jack Hunt, who, in turn, reported to Housekeeping Manager, Art Demerjian. Mr. Demerjian reported to Larry Quick, Director of the Physical Plant. (Rule 12(M) Statement P 5). *fn2" Tom Polczynski was the Building Manager at the Columbus Drive building. (Rule 12(N) Statement P 4).

 In January, 1992, Mr. Bacon heard a click behind him and turned to see Mr. Polczynski holding a camera. Several days later Mr. Bacon saw a photograph of his backside on the desk of Mr. Polczynski. (Rule 12(N) Statement PP 25-26). Also in January, 1992, Mr. Polczynski began to physically bump into Mr. Bacon. On these occasions Mr. Polczynski's shoulders, arms, hands, back or buttocks would come into contact with Mr. Bacon's shoulders, back, arms or buttocks. (Rule 12(N) Statement P 27). Towards the end of March, 1992, Mr. Polczynski started to come up to Mr. Bacon from behind and run his fingers through Mr. Bacon's hair. Mr. Bacon continually told Mr. Polczynski to stop touching him. (Rule 12(N) Statement P 28).

 In April, 1992, Mr. Polczynski and Thelander Bell, another AIC employee, were in the mailroom of the Columbus Drive building. Mr. Polczynski called Mr. Bacon into the mailroom and told him to bend over. Mr. Polczynski then grabbed Mr. Bacon from behind by his hips and proceeded to thrust his penis against Mr. Bacon's buttocks. (Rule 12(N) Statement P 31). Mr. Bacon immediately turned around and told Mr. Polczynski to stop. On another occasion, while Mr. Bacon was getting paint in the basement of the Columbus Drive building, Mr. Polczynski grabbed Mr. Bacon's buttocks. Mr. Bell and another employee, Gary Holt, witnessed this incident. (Rule 12(N) Statement 33). On May 7, 1992, Mr. Polczynski, again in Mr. Bell's presence, grabbed Mr. Bacon from behind and began thrusting his penis against Mr. Bacon's buttocks. Mr. Bacon angrily told Mr. Polczynski to stop. (Rule 12(N) Statement P 35). Mr. Bell suggested that Mr. Bacon speak to either Steve Puma, the Building Manager of the Champlain Building, or Larry Quick, the Director of the Physical Plant, about Mr. Polczynski's behavior. (Rule 12(N) Statement 37). On May 8, 1992, Mr. Polczynski again accosted Mr. Bacon by running a finger along Mr. Bacon's buttocks and grabbing Mr. Bacon's buttocks. (Rule 12(M) Statement PP 38-39).

 On May 8, 1992, Mr. Bacon informed Mr. Puma that Mr. Polczynski was sexually harassing him. (Rule 12(N) Statement P 40). The following Monday, May 11, 1992, Mr. Puma informed Mr. Quick of Mr. Bacon's allegations. (Rule 12(M) Statement P 16). Mr. Quick met with Mr. Polczynski on May 12, 1992. Mr. Polczynski was told to stop his behavior and apologize to Mr. Bacon. (Rule 12(M) Statement P 17). Mr. Polczynski consequently told Mr. Bacon he was only joking and apologized for his actions. (Rule 12(M) Statement P 18).

 On May 14, 1992, Mr. Bacon met with Mr. Quick and John Feery, an Assistant Personnel Director at the AIC. (Rule 12(M) Statement P 19). Mr. Bacon informed Mr. Quick and Mr. Feery of Mr. Polczynski's behavior. Mr. Bacon requested Mr. Polczynski be terminated. (Rule 12(M) Statement PP 20-21). Mr. Quick and Mr. Feery met with Mr. Polczynski and requested that he respond to Mr. Bacon's allegations in writing and that he cease talking to Mr. Bacon and the witnesses to the alleged incidents. (Rule 12(M) Statement P 22).

 On May 18, 1992, Mr. Quick and Mr. Feery interviewed Mr. Bell, Mr. Holt, and Emmit Carter, another AIC employee who witnessed some of the incidents. The witnesses confirmed Mr. Bacon's statements and Mr. Carter and Mr. Holt both indicated Mr. Polczynski had either touched them on the buttocks or made comments about their buttocks. (Rule 12(M) Statement 24). After discussing the matter with the Director of Personnel and outside employment counsel, Mr. Quick and Mr. Feery decided to terminate Mr. Polczynski for engaging in repetitive unwanted behavior involving physical contact of a sexual nature. (Rule 12(M) Statement P 28). Mr. Polczynski was terminated on May 21, 1992.

 Mr. Bacon continued his employment with the AIC after Mr. Polczynski's termination. On October 14, 1992, Mr. Bacon and Mr. Holt received a memo from Mr. Puma warning them against engaging in unprofessional behavior after an incident of horseplay in the cafeteria. (Rule 12(M) Statement P 32; Rule 12(N) Response P 32). On the same day a memo was circulated indicating the only authorized morning break for housekeeping staff was from 9 a.m. to 9:20 a.m. (Rule 12(M) Statement P 33). On November 24, 1992, Mr. Bacon received a Second Warning Notice for taking two unauthorized breaks and refusing a work assignment from Mr. Bell. Id. On December 14, 1992, Mr. Bacon received an annual performance review from Larry Lewis, a Housekeeping Manager, and Mr. Bell. Mr. Bacon was rated "below expectations." (Rule 12(M) Statement P 34).

 On January 17, 1993, Mr. Bacon requested a transfer to another building and complained that Mr. Bell was giving him too much work and favoring Mr. Holt. (Rule 12(M) Statement P 35). The transfer was denied. On January 19, 1993, Mr. Bacon received a Third Warning Notice/Suspension for allegedly threatening Mr. Bell and using profanity. (Rule 12(M) Statement P 37). Mr. Bacon filed a grievance over the Third Warning, but it was rejected by a three-person grievance panel.

 On February 15, 1993, Mr. Bacon did not report to work because he "wasn't in the mood." (Rule 12(M) Statement P 39). In July, 1993, Mr. Hunt again became Mr. Bacon's lead housekeeper, replacing Mr. Bell. From February to November, Mr. Bacon frequently complained that he was the only housekeeper working while other housekeepers simply sat around. (Rule 12(M) Statement P 42). On November 4, 1993, John Guzik, the Columbus Building Manager, Mr. Hunt, and another individual were having a meeting in Mr. Guzik's office. Mr. Bacon entered the office and began complaining about his job duties versus those of other housekeepers. (Rule 12(M) Statement P 43). After airing his concerns, Mr. Bacon was asked to leave. He left, only to return two or three times to continue his argument with Mr. Hunt. (Rule 12(M) Statement P 43).

 By mid-November, Mr. Bacon frequently did not complete his work assignments. (Rule 12(M) Statement P 44). The AIC was consciously tolerating behavior from Mr. Bacon it would not have tolerated from other employees. (Rule 12(M) Statement P 45). On November 22, 1993, Mr. Quick sent Mr. Bacon a memo informing Mr. Bacon he had been absent for thirty-seven days between January 1, 1993 and October 31, 1993, although AIC policy only allowed twelve absences a year. (Rule 12(M) Statement P 46). Mr. Bacon did not return to work after December 3, 1993. He did not respond to a letter from the AIC dated December 16, 1993, ...

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