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CHISHOLM v. FOOTHILL CAPITAL CORP.

May 4, 1998

TERRI CHISHOLM, Plaintiff,
v.
FOOTHILL CAPITAL CORPORATION, NORWEST CORPORATION, and SCOTT DIEHL and MICHAEL SADILEK in their individual and official capacities, Defendants.



The opinion of the court was delivered by: GETTLEMAN

MEMORANDUM OPINION AND ORDER

 Plaintiff Terri Chisholm has filed a six-count second amended complaint against defendants, Foothill Capital Corporation ("Foothill Capital"), Norwest Corporation ("Norwest"), and Scott Diehl ("Diehl") and Michael Sadilek ("Sadilek"), in their individual and official capacities, (collectively "defendants"). In Count I, plaintiff claims that Foothill Capital and Norwest discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. In Count II, plaintiff claims that Foothill Capital and Norwest discriminated against her on the basis of her sex with respect to her wages in violation of Title VII and the Equal Pay Act ("EPA"), 29 U.S.C. § 206. In Count III, plaintiff claims that Foothill Capital and Norwest retaliated against her for opposing their discriminatory practices in violation of Title VII. In Count IV, plaintiff claims that Foothill Capital, Norwest, and Diehl retaliated against her for opposing their unfair wage practices in violation of the Fair Labor Standards Act, which encompasses the EPA. In Counts V and VI, respectively, plaintiff asserts a defamation claim and an invasion of privacy claim against Foothill Capital, Norwest, and Sadilek, under Illinois law. The following motions are presently before the court: (1) Norwest's motion for summary judgment; (2) Foothill Capital, Diehl, and Sadilek's motion for summary judgment, which Norwest has adopted; (3) plaintiff's motion to strike the motion for summary judgment filed by Foothill Capital, Diehl, and Sadilek, and the declaration of Phillip J. Coffin; and (4) Foothill Capital, Diehl, and Sadilek's motion to strike paragraphs 1-5 and 9 of the declaration of David Chisholm.

 FACTS

 The following facts are undisputed except where otherwise noted.

 The Parties

 Foothill Capital is a commercial lender engaged in the business of providing financing and money management services to businesses. Norwest is a diversified financial services company. Norwest operates through subsidiaries engaged in banking and various related businesses, such as venture capital investment. Foothill Capital is a wholly-owned subsidiary of Foothill Group, Inc. ("Foothill Group"). Foothill Group is a wholly-owned subsidiary of Norwest. Norwest acquired the stock of Foothill Group on October 19, 1995.

 Foothill Capital hired plaintiff in October, 1989 to work as a credit underwriter in its Los Angeles office. In mid-1991, plaintiff became a calling officer. In 1994, plaintiff became a marketing representative. While she was employed at Foothill Capital, plaintiff was the only female marketing representative. Diehl was employed by Foothill Capital as a senior vice president in marketing and was plaintiff's immediate supervisor. Sadilek was another marketing representative and worked with plaintiff.

 Plaintiff's Relationship with David Chisholm

 Plaintiff met her husband, David Chisholm ("Chisholm"), in 1991 or 1992 when she called on him in her capacity as a calling officer. Chisholm was a managing director for Bankers Trust Company in Chicago, a company involved in a business similar to the business of Foothill Capital. Chisholm was married at the time. At some point, plaintiff and Chisholm became romantically involved. At some time after that, in late 1993 or early 1994, plaintiff told several friends at Foothill about her affair with Chisholm. Sometime in 1993, plaintiff and Chisholm began appearing in public together as a couple. In the fall of 1993, Chisholm separated from his then wife, Joyce Chisholm ("J. Chisholm"). J. Chisholm filed for divorce later that year. In February, 1994, plaintiff and Chisholm attended a professional conference together in Colorado. Plaintiff has testified that she believed it was "obvious" at the conference that they were a couple.

 When plaintiff learned that Foothill Capital was opening a Chicago office, she requested that she be transferred there in order to be with Chisholm. Diehl already knew that plaintiff was romantically involved with Chisholm, and understood that their relationship was the reason for plaintiff's request. Plaintiff was transferred to the Chicago office, where Sadilek had just been hired. Plaintiff arrived in Chicago in June, 1994, and began living with Chisholm in his residence. Chisholm divorced J. Chisholm on July 20, 1994, and married plaintiff in September, 1994. After their marriage, plaintiff and Chisholm continued to live in Chisholm's residence.

 Alleged Discrimination

 Plaintiff claims that she was discriminated against because of her sex in various ways during her employment at Foothill Capital. Plaintiff asserts that male underwriters were made marketing representatives directly, while she was forced to work as a calling officer -- a less favorable position created solely for her -- for almost two years before becoming a marketing representative. Defendants claim that plaintiff's work as a calling officer gave her an advantage once she became a marketing representative.

 Plaintiff asserts that she had to complain once she was promoted to get her title changed and to obtain a car allowance, while these benefits were provided immediately to males who became marketing representatives. She has testified that she was forced to surrender to Sadilek names on her list of contacts and potential clients, known as "referral sources." Plaintiff could only specifically identify one referral source that she was forced to give up: Kevin Delaplane. The parties dispute whether plaintiff or Sadilek had a stronger relationship with him.

 Plaintiff asserts that her performance and earning capacity *fn1" were diminished because all of the "house referrals" (potential clients that are located internally by Foothill Capital management) were assigned to male marketing representatives for development. She also asserts that similarly-situated male marketing representatives were paid at higher grade levels.

 Plaintiff asserts that her 1994 performance review, which she received from Diehl in March 1995, was also discriminatory. In that review, plaintiff received an overall rating of 3.01 on a 4.0 scale. Under Foothill Capital's rating system, a 3.0 indicates that the employee is "achieving objectives" and a 4.0 indicates that the employee is "exceeding objectives." Although plaintiff generally rated her performance higher in her self-appraisal, she did not rate herself above a 3.5 in any category. Initially, Diehl did not plan to recommend that plaintiff be promoted. Diehl, however, reconsidered his decision later that day and told plaintiff that she would be promoted to vice president. Plaintiff's promotion and accompanying $ 4000 salary increase were made retroactive to January 1, 1995. Plaintiff asserts that she had to complain about her evaluation to obtain this promotion, while males who did not perform as well were held to lower standards and recommended for promotions.

 When Foothill Capital leased new office space, Sadilek took the largest office for himself. Plaintiff claims she was entitled to the larger office. Defendant disputes this. The parties, however, agree that Diehl told them to resolve the dispute themselves and flip a coin if necessary. Plaintiff and Sadilek agreed to this. Plaintiff lost the coin flip.

 Plaintiff also claims that she was excluded from networking and mentoring opportunities presented to her male peers, such as golf outings and business dinners. Between June 1994 and November 1995, Diehl participated in golf outings with Sadilek on approximately seven occasions. Plaintiff played in two of these of these outings. Plaintiff was invited to attend one of the other outings, but declined the invitation. One of the other outings took place at a men's club, where a potential client belonged. One of the outings took place in Atlanta when Diehl and Sadilek arrived early for a conference and played by themselves. Plaintiff has never set up a golf outing with Diehl, and Diehl has never declined a social invitation from plaintiff.

 Plaintiff specifically claims that she was not invited to a dinner held at a conference in Washington, D.C. in October, 1995. She has testified that she does not know who attended the dinner, but that a co-worker, Paula Wolf ("Wolf") told her that everyone else from the marketing department had been invited. Wolf has testified that she organized an informal dinner on October 25, 1995, for Foothill personnel who were unable to find referral sources to entertain at dinner. Wolf has testified that plaintiff did not advise her that she was available for dinner that evening and that, as a result, she assumed plaintiff was dining with referral sources, as was expected of all marketing representatives. Plaintiff has testified that she had dinner with her husband that night.

 Plaintiff also claims that she was excluded and isolated because it was common for Foothill Capital's male managers and salespersons to attend strip clubs in connection with business-related matters. Sadilek has testified that he and Diehl have gone to strip clubs together on several occasions. Sadilek has testified that other Foothill Capital salespeople accompanied them on at least one occasion. Craig Noell ("Noell"), another marketing representative, has testified that he went to strip clubs with Diehl on at least two occasions either in 1994 or 1995. Noell testified that he has never been to a strip club with a prospective client or referral source. Jim Marasco ("Marasco"), another marketing representative, has testified that he went to strip clubs with other Foothill Capital employees on a number of occasions in California, Illinois, Louisiana, New Mexico, Oregon, Texas, and Washington, D.C. Marasco has testified that various people accompanied him, including Diehl, Sadilek, and Peter Schwab ("Schwab"), the president of Foothill Capital. When asked if any referral sources accompanied him to a strip club in New Orleans, Marasco responded "I think so." Schwab has testified that he went to strip clubs with Foothill Capital employees in Chicago and Dallas.

 Finally, plaintiff claims that Foothill Capital held parties at industry conferences and hired entertainment that degraded women. A cardboard cutout of a model in a transparent T-shirt was placed at one party, apparently so that people could have their picture taken with it. At another party, Foothill Capital hired a woman to dressed as a mermaid. At another, Foothill Capital hired cheerleaders for entertainment.

 The Overlap Comment

 In August, 1995, Diehl and Sadilek paid a marketing call on Fretter Appliance Company ("Fretter"), which is located in suburban Detroit. Sadilek had learned that Fretter was experiencing financial difficulties. He had therefore called John Hurley ("Hurley"), a Fretter representative, and asked if he would be interested in talking to Foothill Capital about financing. Diehl, Sadilek, Hurley, and another Fretter representative, Dale Campbell ("Campbell"), were present at the meeting in Detroit. Diehl and Sadilek knew that Fretter's lender at the time was Banker's Trust, and that Chisholm was responsible for the Fretter account. Sadilek has testified that he told Hurley and Campbell that a woman in his office was married to Chisholm because he thought Fretter might believe that the relationship created some conflict of interest. Sadilek did not mention plaintiff's name. Sadilek has testified that Hurley said, "I didn't know that Dave was remarried" or something to that effect. Sadilek has testified that he then said, "there was some overlap there," referring to the ...


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