5'. The defendant's best piece of evidence is Bowers' journal notation
of April 26, 1996, where Bowers writes about Davis' crudeness and
"sexually harassing comments, and says: "It seems that people have won
cases even when they don't have as much evidence as I do about my
situation. I could get Dana on all of these issues right now!"
If I were to view this evidence in a light favorable to the defendant,
I might conclude that Bowers' limitations period began on this date.
However, on a motion for summary judgment, I view the facts and the
record in the light most favorable to Bowers, the non-movant. Parkins v.
Civil Constructors of Il, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). So
viewed, I observe the context of the comment. It is sandwiched in between
the comments of April 18 and June 6, 1996, which suggest that Bowers
thinks she did not have enough to obtain legal relief. I therefore
construe the remark about being "able to get Dana on all of these issues
right now" as an exaggeration, a overstatement due to excitement at
finding case law that might, if the situation developed, warrant legal
The Society, then, fails to argue that it had been long evident that if
her allegations were true that Bowers would have indeed been "a victim of
actionable harassment," Hardin, 167 F.3d at 344, before she was fired.
Even if I were to treat its arguments about Bowers' subjective beliefs as
arguments about the objective reasonableness of correct beliefs that she
had a cause of action, they fail to establish any such thing. I must
therefore deny the Society's motion for summary judgment on Bowers'
claims based on events prior to July 5, 1997.
There is another basis for denying the Society's summary judgment
motion that turns on the way the continuing violation doctrine interacts
with the two main approaches to a sexual harassment lawsuit. Under a
"hostile environment theory," a plaintiff may sue because of severe and
abusive harassment that unreasonably interferes with an individual's work
performance or creates an intimidating, hostile, or offensive working
environment. Doe v. R.R. Donnelley & Sons, Co., 42 F.3d 439, 443 (7th
Cir. 1994). Under a "quid pro quo" theory, an employee may also sue if
tangible employment benefits are conditioned upon compliance with a
harasser's sexual demands. Bryson v. Chicago State Univ., 96 F.3d 912,
915 (7th Cir. 1996). The Supreme Court has held that "[t]he terms quid
pro quo and hostile work environment are helpful, perhaps, in making a
rough demarcation between cases in which threats are carried out and
those where they are not or are absent altogether, but beyond this are of
limited utility." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751,
118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
Here, Bowers was subjected to crude and boorish conduct, and
additionally, fired. The Society fails to argue, or to present evidence
warranting the conclusion, that Davis's complained-of conduct outside the
limitations period amounted to "the kind of . . . attentions that can
make the workplace hellish for women," Baskerville v. Culligan Int'l,
50 F.3d 428, 430 (7th Cir. 1995), which would have given a reasonable
person a correct belief that the conduct was serious enough to be
actionable at the time. However, behavior that by itself was not extreme
or frequent enough to trigger a hostile work environment claim may become
actionable if it is capped off with quid pro quo harassment. As I have
said elsewhere, "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." Faccio-Robert v. Empress River Casino,
80 F. Supp.2d 918, 920 (N.D.Ill. 2000).
This is one of those circumstances. Davis' unwanted passes, salacious
documents, crudeness, and inappropriate comments, even if by themselves
merely manifesting the lack of tact or sensitivity that is "too
commonplace in today's America to be classified as discriminatory," Minor
v. Ivy Tech State College, 174 F.3d 855, 858 (7th Cir. 1999), could later
become recognizable as actionable hostile environment harassment after
Davis allegedly had Bowers fired when she did not accede to those boorish
importunities. Since "claims that raise a genuine issue of material fact
as to the existence of a hostile environment involve allegations of
continuing violations," Draper v. Coeur Rochester, Inc., 147 F.3d 1104,
1108 (9th Cir. 1998) (citing Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)), in these
circumstances, the events outside the limitations period come in.
In any event, the conduct outside the limitations period, and indeed,
even the behavior that occurred at the Association, is evidence of
illegal discriminatory motive that supports a quid pro quo harassment
case. If credited, this evidence could lead a rational jury to believe
that Bowers was fired because she would not give in to Davis' request,
rather than for any nondiscriminatory reason.
The Society's motion for summary judgment on Ms. Simon's claims before
July 5, 1997 is DENIED.