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August 30, 2002


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



On March 22, 2000, Synergy employed Dominicak as a Property Coordinator to work at Urban, a Chicago-based company that manages commercial real estate properties. Synergy, a Chicago-based company, provides human resource and payroll services to companies including Urban. Jeffrey Tosello, an employee of Synergy and President and Chief Operating Officer of Urban, interviewed Dominicak and approved her hiring as Property Coordinator.*fn1 Tosello had the sole authority — subject to Synergy's approval — to hire, assign, promote, discipline and fire employees.*fn2 Although Property Manager Scott Mosak and Director of Property Management Gary Wenzel occasionally assigned work to Dominicak, Tosello supervised Dominicak throughout her employment at Urban.

Tosello created the Property Coordinator job description and viewed the Property Coordinator as primarily a receptionist or dispatcher with administrative duties. (R. 12, Defs.' Facts ¶ 33.) Although Tosello testified that a Property Coordinator should spend about ninety percent of her time receiving tenant calls and dispatching prearranged services, (Id., Ex. C, Tosello Dep. at 14), Dominicak maintains that she performed work not described in the Property Coordinator job description, such as soliciting bids from vendors on repair work for properties and following up on overdue tenant collections, (R. 27, Pl.'s Facts, Ex. 1, Dominicak Dep. at 15-17). Moreover, Dominicak alleges that as Urban's clientele grew, many emergencies arose that she handled independently. (Id. at 53-54.) Defendants maintain, however, that Dominicak did not resolve the issues herself, but went to Roxanne Gardner, Urban's Vice President, or Tosello for direction. (R. 12, Defs.' Facts ¶¶ 73-74; Id., Ex. H, Gardner Aff. ¶ 4.) Egan described Dominicak's work as "desk-top property management." (R. 27, Pl.'s Facts, Ex. 3, Egan Dep. at 21.) As Egan described it, a Property Manager might spend time on-site responding to problems whereas Dominicak did not go on-site but would inform an on-site Property Manager of the problems. (Id. at 2123.) In essence, "[w]hat Jayme was doing was part of what a property manager does." (Id. at 23.)

Tosello evaluated Dominicak at her six-month performance review on August 10, 2000. Dominicak's ratings ranged from "satisfactory" to "exceeds expectations." Tosello observed that Dominicak was meeting the responsibilities of her position. In the comments section, Tosello noted that Dominicak "has shown an outstanding ability to communicate and facilitate activity in the division. She shows better than average common sense and judgement [sic]," but he also noted that she needed to focus more on completing the administrative aspects of her job. (R. 12, Defs.' Facts, Ex. B, Dominicak Dep., Ex. 8, Performance Review.) Dominicak received a $1,000 raise along with her performance review.

Beginning at her initial job interview with Tosello, Dominicak expressed interest in advancing within the company. She maintains that Tosello told her that there was room for advancement and that he specifically referred to the Property Manager position. (R. 27, Pl.'s Facts, Ex. 1, Dominicak Dep. at 162.) Tosello, however, denies that Dominicak ever indicated to him that she wanted to be a Property Manager. (R. 12, Defs.' Facts, Ex. C, Tosello Dep. at 19.) Rather, Tosello recalled several conversations with Dominicak where they talked about career advancement in general and where he counseled her to go to college or to get involved with lease administration. (Id. at 19-21.)

Egan, however, testified that Dominicak told him that she wanted to be promoted to Property Manager. (R. 27, Pl.'s Facts, Ex. 3, Egan Dep. at 19.) Egan also testified that Tosello himself told Egan that Dominicak had spoken to Tosello about moving to a Property Manager position. (Id. at 19-20.) Egan testified that Tosello essentially told him that Dominicak needed more experience and skills before she could be promoted to Property Manager. (Id. at 20.) In Egan's opinion, however, Dominicak possessed the skills to become a Property Manager and could have handled the position "with more seasoning." (Id. at 25, 51.)

Egan thinks that he discussed Dominicak's desire to be a Property Manager with Tosello at the same time that the two discussed "the safety issue." (Id. at 49.) At his deposition, when asked if he recalled Tosello remarking that he preferred men over women as Property Managers, Egan testified that: "I think it may have been discussed more having to do with the safety issue, given the graphic [sic] location of some of our properties. Jayme is a petite, young, white female. Some of our properties are in disadvantaged communities, primarily African-American. I think there may have been a concern-that there may have been a concern for Jayme's safety." (Id. at 35.) Egan could not recall whether Tosello brought up this concern or whether it arose in the course of conversation. Egan further testified that: "In my experience, the property manager deals with a lot of tradesmen, blue collar type of guys. And I have seen tradesmen try to fool or oversell a female who may not be as technically or mechanically educated as a man may be. So in my experience I have seen that happen where contractors try to steam roll or fool female property managers." (Id. at 36.) Egan could not recall whether he expressed this "steam rolling" concern to Tosello or whether Tosello expressed it to him. (Id.)

Although Defendants allege that Synergy did not hire anyone other than Mosak to work as a Property Manager at Urban during Dominicak's tenure, Dominicak asserts that Greg Frye was transferred into a Property Manager position. (R. 12, Defs.' Facts ¶ 182; R. 27, Pl.'s Facts ¶ 182.) Tosello, however, asserts that Frye was essentially a runner for the gas stations serviced by Urban client Illinois Petroleum Company and that he was neither a Property Manager nor a Property Coordinator but some blend of each. (R. 12, Defs.' Facts, Ex. C, Tosello Dep. at 18.) On December 19, 2000, Tosello hired Ryan Worcester as a Property Manager. Worcester had an associate's degree in liberal arts, was a licensed real estate broker and had worked as a property manager of commercial, residential and retail properties for nearly 10 years. Defendants allege that Urban was not actively looking for a Property Manager. (Id. at ¶ 183.) Dominicak, however, maintains that starting at the end of October 2000, she noticed that Urban was receiving resumes via fax for a Property Manager position. (R. 27, Pl.'s Facts ¶ 183.) When Dominicak confronted Tosello about the open Property Manager position, he told her that she was not qualified for the position because she did not know how to do a build out and that she did not have the requisite degree. Dominicak maintains that she was as qualified or more qualified than Frye or Worcester because she was "on the front lines" fielding telephone calls and working directly with tenants. (Id., Ex. 1, Dominicak Dep. at 177.) Furthermore, Egan testified that although Worcester's resume was stronger than Dominicak's, "off-paper" Dominicak "could do anything she wanted to do." (Id., Ex. 3, Egan Dep. at 51.) Dominicak admits that she did not meet the educational requirements for a Property Manager position, but asserts that neither did she meet the educational requirements for the Property Coordinator position. (Id. at ¶ 198.)

On November 2, 2000, Wenzel and Egan were talking in the doorway of Tosello's office when Wenzel hit Dominicak on the buttocks several times with a roll of site plans as she tried to enter Tosello's office. Later that same afternoon, Dominicak spoke to Tosello about the incident.*fn3 When Dominicak explained that Wenzel had "spanked" her, Dominicak alleges that Tosello laughed at Dominicak, said "okay" and said that he would talk to Wenzel about the incident. (Id., Ex. 1, Dominicak Dep. at 100.) Tosello contends that he indicated to Dominicak during this meeting that Wenzel's behavior was inappropriate. (R. 12, Defs.' Facts ¶ 93.)

After speaking with Dominicak, Tosello spoke with Wenzel. Wenzel admitted to swatting Dominicak on the buttocks with the plans but claimed it was unintentional. Tosello asked Wenzel whether he understood the "severity of the situation" if Dominicak felt threatened or "weird" about the situation. (Id., Ex. C, Tosello Dep. at 36.) Tosello also told Wenzel that his actions were "stupid," which Wenzel admitted they were, and that it should not happen again. (Id.) After speaking with Wenzel, Tosello spoke with Robert Meza, Urban's in-house attorney, who suggested that Tosello meet with both Dominicak and Wenzel to resolve the matter.

After the meeting with Dominicak and Wenzel, Tosello wrote a memo to Meza summarizing the conversations of that day, sent a copy to Synergy and put a copy of the memo in Wenzel's personnel file. (R. 12, Defs.' Facts ΒΆ 106.) Tosello further testified that after he documented the incident in the memo, he called Gardner to tell her about the incident and his handling of it. According to Gardner, ...

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