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FACCIO-ROBERT v. EMPRESS RIVER CASINO

January 5, 2000

NELIDA FACCIO-ROBERT, PLAINTIFF,
V.
EMPRESS RIVER CASINO, DEFENDANT.



The opinion of the court was delivered by: Bucklo, District Judge.

MEMORANDUM OPINION AND ORDER

Nelida Faccio-Robert ("Robert") was hired as a security supervisor for Empress River Casino ("Empress") in Joliet, Illinois, in 1992. After four years she became Chief of Security. She was fired in August 1998 by David Fendrick, who had been hired as Vice President and General Manager in August 1997. She filed her EEOC charge on December 1, 1998, and after receiving her right to sue letter, sued Empress for sex discrimination and harassment under 42 U.S.C. § 2000e, et seq. Empress moves for summary judgment on Robert's hostile work environment sexual harassment claim.*fn1 I deny the motion.

Summary judgment is appropriate where there is no material issue of fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). I take the facts in the light most favorable to the party opposing the motion, Fulk v. United Transp. Union, 160 F.3d 405, 407 (7th Cir. 1998), but the nonmoving party has the burden of coming forward with enough evidence so that a rational jury could find for it at trial. Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In this case, Robert has met her burden.

A plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). However, "isolated and/or trivial remarks of a sexual nature do not satisfy the definition of sexual harassment." Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1143 (7th Cir. 1997). Harassment is actionable under Title VII only if it can be described as discrimination in the terms or conditions of work. Therefore, sexual harassment that does not involve a supervisor's extorting sexual favors but instead involves the creation of a hostile work environment must be sufficiently severe or pervasive to make the workplace intolerable for the members of the group discriminated against. Minor v. Ivy Tech State College, 174 F.3d 855, 857 (1999).

Empress argues that the episodes recounted by Robert do not rise, or fall, to the level of intolerability required by the Seventh Circuit to maintain a hostile work environment claim. These alleged episodes, which I must accept as true for purposes of this motion, include the following:

1. At a tent party in August 1997, Fendrick, Robert's new boss, told her, "Your chief of security a woman, Huh? I've been the only chief of security and I'm not a woman. I'm all man, as you can see."

2. In September 1997, Fendrick met with Robert one-on-one. As a new manager at the casino he was meeting with all the department heads. He asked her whether she was "going to start crying" and stated that he didn't like "emotional women working for me." He asked her, "Are you married, how's your marriage?"; she told him she was happily married. He stood up, leaned closer to her, and asked, "So are you happily married?" She told him he was. He sat down and asked, "Do you like to have fun? Do you like to play around?" She told him that she didn't like to "play around" but respected her 14-year marriage. He said, "Well Nell, is it OK if I call you Nell?" She interrupted and asked to be addressed as "Nellie, Chief Robert or Mrs. Robert, but not Nell." "OK Nellie," he said, "I'm warning you so you know, to be successful in this business you need to learn to play the game or you'll be gone."

3. On one occasion, the date of which Robert cannot identify, Fendrick made a comment at a pizza party. He was smoking a cigar, raised a glass, and toasted, "To the Empress, to life, to women, to Hitler, to tits." He then bit off the end of the cigar.

4. On a weekly basis, Fendrick would make sexual comments ("nice ass," "big ass," "big tits," etc.) at focus meetings that Robert attended.

5. In December 1997, Robert had to leave a meeting to which Fendrick was late in order to pick up her kids. She met Fendrick in the hall and explained why she was leaving. He stated that she had to decide what was more important (her job or her kids), and that obviously she had already made her choice.

The Seventh Circuit has a moderately employer-friendly treatment of hostile work environment cases. It has held that although the concept of sexual harassment is "designed to protect working women from the kind of male attentions that can make the workplace hellish for women . . ., it is not designed to purge the workplace of vulgarity." Baskerville v. Culligan Int'l, 50 F.3d 428, 430 (7th Cir. 1995). The behavior must be "`extreme.' It is not enough . . . to treat a female employee with[out] sensitivity, tact, [or] delicacy, [to use[]] coarse language, or [be] a boor. Such failures are too commonplace in today's America, regardless of the sex of the employee, to be classified as discriminatory." Minor, 174 F.3d at 858.

But Fendrick crossed the line. Unlike the defendant in Minor, he did "quiz her about her personal life" and "engage her in conversations about sex or love." Id. at 858. Moreover, Fendrick's crude pickup attempt, coupled with a threat to fire her unless she put out ("play the game or you'll be gone"), was extreme. It colors the earlier "all man" remark and infects the later behavior, rendering that behavior extreme taken in light of the quid pro quo harassment. Even if the rest of Fendrick's conduct did not by itself descend to the level required to maintain a hostile work environment claim, it does not stand by itself. It cannot be considered mere vulgarity or boorishness for a woman to be subjected to a constant stream of sexual remarks, including some with distinctly menacing overtones ("to women, to Hitler, to tits . . ."), by a superior who has not merely propositioned her but has warned her that she will be fired if she does not "learn to play the game." That is "the kind of male attention that can make the workplace hellish for women." Baskerville, 50 F.3d at 430.

This quid pro quo harassment distinguishes this case from the cases cited by Empress where the Seventh Circuit affirmed grants of summary judgment for the defendant despite unwanted touching and kisses. Those cases did not involve extortion of sexual favors with threats of adverse employment action. Coupled with the quid pro quo harassment, the other conduct is severe enough to be hostile environment harassment. Obviously quid pro quo harassment is neither necessary nor sufficient for a hostile work environment claim. But, in the appropriate circumstances, it may help make other conduct severe enough to constitute a hostile work environment.

The Seventh Circuit has also held that "isolated and innocuous incidents do not support a finding of sexual harassment." DiCenso v. Cisneros, 96 F.3d 1004, 1008 (7th Cir. 1996). Empress argues that Robert's case rests on only four incidents, but in the first place, this is not true, given Robert's allegations about weekly sexual comments at the focus meetings over the course of a year. The conduct "persisted for a lengthy period of time and that, during that period, was a pervasive aspect of the plaintiff's employment." Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir. 1994). Second, "there is ...


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