The opinion of the court was delivered by: Charles Ronald Norgle, Sr. United States District Judge
Before the court is Plaintiffs motion to amend judgment, which is in
substance a timely filed motion under Federal Rule of Civil Procedure
59(e). Plaintiffs motion is directed to the court's order granting
summary judgment in favor of Defendant WGN Continental Broadcasting Co.
See Kerr v. WGN Continental Broadcasting Co., No. 01 C 7196, 2002 WL
1477629 (N.D. Ill. July 9, 2002). For the following reasons, Plaintiffs
motion is denied, but the court expands its reasons for granting WGN's
summary judgment motion.
Katherine Kerr sued WGN claiming that WGN discriminated against her in
violation of Title VII by permitting a hostile work environment and by
retaliating against her for complaining of the hostile environment. A
short discussion of the factual background is necessary to place
Kerr's motion to amend the judgment in context.
WGN is, inter alia, a broadcasting company that airs television
programs locally in the Chicago area and nationally through cable
television. WGN televises some of the games played by local sports
teams, including the Chicago Cubs, Chicago White Sox, and Chicago Bulls.
WGN is not the exclusive broadcaster for such games, as other networks,
such as ESPN and Fox Sports Net Chicago also broadcast their games.
To broadcast sporting events, WGN uses a mobile production facility,
commonly known as a broadcast truck, which contains the equipment
necessary to broadcast live from the stadiums where the games are being
played. WGN does not own the broadcast trucks it uses for sporting
events. Instead, WGN contracts with Co-Defendant Trio Video to provide
WGN with broadcast trucks and related production personnel. Trio Video
and WGN have had such contracts for a number of years.
In the early 1990's, Kerr began working with Trio Video and received
assignments to work sporting event broadcasts. Kerr's job was that of a
television stage manager, which is also known as an assistant director.
In performing her duties, Kerr would sit in the broadcast booth during
games and assist with the coordination of the show. Kerr was responsible
for providing the on-air broadcasters with current information about the
game, such as pitching and lineup changes. Kerr advised the broadcasters
whether they were on or off the air and provided promotional materials
and cues for on-air readings. Kerr's position placed her in front of
video monitors that received images from cameras throughout the venue.
Kerr also wore a headset/microphone to communicate with other production
personnel, through which she necessarily heard all their communications.
Kerr alleges that she was subject to a sexually hostile environment
when she worked WGN broadcast Chicago Cubs home games. According to
Kerr, the camera operators would take gratuitous footage of female
spectators and show that footage repeatedly on video monitors within
Kerr's sight. Kerr also claims that the camera operators would engage in
overtly sexual conversations on their communication equipment, which Kerr
had no choice but to overhear. Kerr has alleged a litany of instances in
which she was subject to viewing and hearing sexually oriented material.
All of these instances occurred during WGN broadcast Cubs home games.
As noted above, WGN is not the exclusive broadcaster for Cubs home
games. WGN broadcasts approximately 50% of the home games, with Fox
Sports Net Chicago broadcasting the other 50%. Kerr's duties were not
limited to WGN broadcasts or Cubs games. She also worked games played by
other local teams, and worked on sporting events that were broadcast by
other networks, such as Fox Sports Net Chicago and ESPN. Kerr's
allegations of a hostile environment are limited to WGN broadcast Cubs
home games. She makes no allegation of any improper conduct during any
other broadcasts that she worked.
Kerr claims that in June of 2000 she complained to both WGN and Trio
Video about the harassment. According to Kerr, her complaints had no
effect on the allegedly hostile environment, and she encountered
resistance when she complained to a WGN senior producer. Kerr alleges
that on October 11, 2000, WGN informed Trio Video that WGN no longer
wanted to use Kerr as a stage manager. Subsequently, Kerr alleges that
Trio Video terminated her.
Early in the litigation, the question of Kerr's status as an employee
of WGN arose WGN took the position that it had
never employed Kerr, and
therefore, could not be liable to her under Title VII. Kerr asserted that
she had been employed by WGN, and even if she had not, WGN could still be
liable to her under Title VII. The court invited WGN to file a motion for
summary judgment to crystallize the issue. After full briefing, the court
granted WGN's motion, finding that there were no questions of material
fact concerning the lack of an employment relationship between Kerr and
WGN. See Kerr 2002 WL 1477629, at *3-7. The court also rejected Kerr's
alternative theory that WGN could incur Title VII liability to Kerr based
on a de facto employer/interference theory. Id. at *7-8. In the same
order, the court denied Trio Video's motion for summary judgment, finding
that there was evidence that Kerr had been employed by Trio Video. See
id. at *3-7.
Kerr now moves to alter the court's judgment on her alternative theory
that WGN can incur Title VII liability absent an employment
relationship. Kerr argues that the court misconstrued the differences
between so-called "de facto" employer liability and "interference"
liability. The issue is fully briefed and ripe for ruling.
A. Standards for Rule ...