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SCHMITZ v. ING SECS.

July 9, 1998

LAURA SCHMITZ, Plaintiff,
v.
ING SECURITIES, FUTURES & OPTIONS, INC., 1 Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 Laura Schmitz ("Schmitz") has sued her ex-employer ING Securities, Futures & Options, Inc. ("ING") under Title VII, 42 U.S.C. § 2000e to 2000e-17, asserting that she had been the victim of (1) sexual harassment and (2) retaliatory firing. After ING then moved for summary judgment dismissing Schmitz' claims under Fed. R. Civ. P. ("Rule") 56, the parties have complied with this District Court's General Rule ("GR") 12(M) and 12(N)--provisions adopted to facilitate the identification of the existence or nonexistence of genuine issues of material fact. It is clear from those two submissions and from the litigants' supporting memoranda that Schmitz must fail as a matter of law, so that there is no need to await the final filing of ING's reply memorandum, due to be submitted on July 21. Instead, for the reasons stated in this memorandum opinion and order, ING's motion is granted and this action is dismissed.

 Summary Judgment Standards

 Familiar Rule 56 principles impose on a party seeking summary judgment the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court must "read[ ] the record in the light most favorable to the non-moving party" (in this instance Schmitz), although it "is not required to draw unreasonable inferences from the evidence" ( St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n.2 (7th Cir. 1997)).

 Schmitz' Sexual Harassment Claim

 Within the past two weeks the Supreme Court has issued two June 26 opinions containing its universally-awaited definitive pronouncements on the liability of employers for sexual harassment by supervisors, Burlington Indus., Inc. v. Ellerth, 141 L. Ed. 2d 633, 1998 U.S. LEXIS 4217, 118 S. Ct. 2257 (U.S. 1998) and Faragher v. City of Boca Raton, 141 L. Ed. 2d 662, 1998 U.S. LEXIS 4216, 118 S. Ct. 2275 (U.S. 1998). In part Burlington, 66 U.S.L.W. at 4636 serves to limit the significance of the dichotomy between "quid pro quo" and "hostile environment" sexual harassment that had been built up in the lower federal courts' jurisprudence, based on the Supreme Court's earlier mention of those terms in Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). In that respect it is undisputed that what Schmitz claims is not quid pro quo harassment: As discussed hereafter, the complained-of comments and criticisms of Schmitz by ING's then Chief Financial Officer William Pauly ("Pauly") were the exact opposite of threats (or even hints) that Schmitz' job hinged on her willingness "to submit to a supervisor's sexual demands" ( Burlington, 66 U.S.L.W. at 4637).

 Burlington, id. also teaches that "for any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive" and that "unfulfilled threats" based on such a refusal to submit "should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct." And although neither Burlington nor Faragher of course limited the "hostile work environment" concept to the kind of threats that if carried out could have fitted within the "quid pro quo" notion, both decisions made it clear that the principles voiced in Meritor continue to set the guideposts for all claims of sexual harassment ( Faragher, 66 U.S.L.W. at 4647-48; Burlington, id. at 4637).

 In that regard Meritor, 477 U.S. at 65 relied on the EEOC Guidelines (29 C.F.R. § 1604.11(a)) for the definition of "sexual harassment" actionable under Title VII:

 
As an "administrative interpretation of the Act by the enforcing agency," Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), these Guidelines, "'while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,'" General Electric Co. v. Gilbert, 429 U.S. 125, 141-142, 50 L. Ed. 2d 343, 97 S. Ct. 401 (1976), quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944).

 That definition comprises "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." And most importantly for this case, neither Burlington nor Faragher nor any of the earlier Supreme Court decisions on which they rely--not Meritor, not Harris v. Forklift Sys., Inc., 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993), not Oncale v. Sundowner Offshore Servs., Inc., 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998)--involved the type of conduct that is ascribed to Pauly (which it will be seen was the very antithesis of quid pro quo harassment), nor did any of those decisions even suggest that conduct of the type that Pauly will be seen to have engaged in arguably comes under the rubric of sexual harassment as marked out by those cases.

 With that general preview of what is to come, it is time to turn to the specifics of Schmitz' claim--a claim that Schmitz has characterized, and that ING and this Court have accordingly treated, as one of alleged sexual harassment. There is really no quarrel about the fact that while Schmitz was working as ING's receptionist--with her primary duties comprising answering the telephone, greeting guests and sorting mail, with some lesser responsibilities for typing and other office matters as time permitted--she was frequently badgered by Pauly about what he believed to be her wearing of inappropriately suggestive clothing--skirts that were too short (always ending 5 to 6 inches above her knee), skirts and blouses that were too tight, blouses that were low-cut and showed her cleavage, and generally clothes that were too sheer and revealing *fn2" --as well as what he perceived as her unseemly provocative behavior.

 For the most part Schmitz' testimony on that score (which will be credited for purposes of the present Rule 56 motion) was to this effect (GR 12(M) P44):

 
For example, Ms. Schmitz claims that Mr. Pauly asked her whether she thought her skirt was too short for the office and her leggings were appropriate workplace attire. Ms. Schmitz also alleges that Mr. Pauly said that her dress left nothing to the imagination; that he was a "hot blooded male" and if he could be aroused by her inappropriate attire, imagine what she was doing to the rest of the office (i.e., distracting them); and that he would not let his wife leave the house if she dressed like Ms. Schmitz.

 Even more particularly, here are some paragraphs of ING's GR 12(M) statement that (except as limited by this opinion's corresponding footnotes) are to be viewed as uncontested by Schmitz in factual terms, at ...


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