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EAGON v. PATRICK LIBERTYVILLE AUTOMOBILES

January 16, 2004.

PATRICIA EAGON, Plaintiff,
v.
PATRICK LIBERTYVILLE AUTOMOBILES, INC., an Illinois corporation d/b/a PATRICK PONTIAC-GMC TRUCK, Defendant



The opinion of the court was delivered by: GEORGE LINDBERG, Senior District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Patricia Eagon brought this action against defendant Patrick Libertyville Automobiles, Inc., alleging claims of sexual harassment (Count I), sex discrimination (Count II), and retaliation (Count III) under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Before the court is defendant's motion for summary judgment. For the reasons stated below, defendant's motion is granted.

I. Factual Background

  Defendant is an automobile dealership. Plaintiff began working for defendant in 1986, and became the office manager in May 1997. As office manager, plaintiff supervised six employees. Her supervisor was Tom Scoleri.

  During the time relevant to this action, Jim Riba was an assistant manager in defendant's service department. Riba had no supervisory authority over plaintiff. Beginning in October 1999, Riba began to make unwanted sexual advances to plaintiff. Between October 1999 and December 2000, plaintiff made numerous complaints to Scoleri and various managers about Page 2 Riba's advances and sexual comments.

  On March 9, 2001, plaintiff sent a letter to defendant's owner, complaining that Riba had been sexually harassing her. After plaintiff sent her letter, Scoleri met with plaintiff to discuss it. Scoleri was angry that plaintiff had gone over his head to complain directly to the owner. Defendant retained an outside attorney to investigate plaintiff's complaint. On April 6, 2001, after the attorney issued a report containing his findings, defendant issued Riba a verbal and written warning.

  Plaintiff does not dispute that after March 2001, the sexual harassment she perceived diminished. However, plaintiff claims that Riba continued to make advances to her, and make offensive comments to her and about her, after March 2001, In addition, according to plaintiff, after she sent the March 2001 letter, many of her co-workers stopped talking to her, and she was given the additional duty of answering telephones.

  In the summer of 2001, Scoleri observed that on some days, plaintiff would come to work with an attitude problem. During the same period, three managers complained to Scoleri that plaintiff had a bad attitude and that they were not able to deal with her on a day-to-day basis. The managers advised Scoleri that plaintiff responded with disgust to their work-related questions or requests. According to Scoleri, he performed some of plaintiff's duties because other employees did not want to approach plaintiff.

  In August 2001, Scoleri met with plaintiff to counsel her about her attitude in the workplace and her dealings with her co-workers. After the August 2001 meeting, Scoleri did not receive any further complaints from other managers about plaintiff, and he observed only that plaintiff appeared very quiet at work. Page 3

  In September 2001, Scoleri heard plaintiff tell another employee that she could not stand working at the dealership. On September 21, 2001, Scoleri met with plaintiff and directed her to write him a note explaining why she made the comment. Plaintiff wrote Scoleri a note stating that she had made the comment because she did not feel that she was appreciated. On September 24, 2001, Scoleri terminated plaintiff's employment.

  II. Discussion

  Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with [any] affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court must draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The moving party bears the initial burden of demonstrating that no material issue exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properly supported its motion, the nonmoving party must offer specific facts demonstrating that a material dispute exists, and must present more than a scintilla of evidence to support its position. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 251-52 (1986),
A. Discrimination and Harassment (Counts 1 and II)
  Defendant argues that it is entitled to summary judgment on plaintiff's discrimination and harassment claims because the factual allegations contained in those claims are time-barred. In Illinois, a discrimination charge must be filed with the Equal Employment Opportunity Commission ("EEOC") within 300 days after the alleged unlawful employment practice occurred that forms the basis for the charge. See 42 U.S.C. § 2000e-5(e); Sharp v. United Airlines. Inc., Page 4 236 F.3d 368, 372 (7th Cir. 2001). Plaintiff filed her EEOC charge on May 16, 2002. Defendant maintains that any acts occurring prior to July 20, 2001 — the 300th day before May 16, 2002 — are time-barred.
  Plaintiff responds that some of the acts about which she complains did occur within the 300-day filing period, and that the court may consider acts that occurred prior to that period under the continuing violation doctrine. In her Statement of Additional Undisputed Material Facts and supporting affidavit, plaintiff states that Riba harassed her in the following ways during the 300-day filing period:
• Riba asked plaintiff out in August 2001, and again after Labor Day 2001. When plaintiff declined Riba's August invitation, Riba called her a "slut," and when plaintiff declined his September 2001 invitation, Riba stated that plaintiff was a "fucking bitch not worth his time anyway."
• Riba referred to plaintiff as a "slut," "whore," "psycho bitch," and "fucking bitch" in conversations he had with others in plaintiff's presence.
• Shortly before plaintiffs birthday in August 2001, after plaintiff bad walked by him, Riba told an employee,"yea, I'm going to give her some. Bang the bag for her birthday."
• In September 2001, after plaintiff had complained to Scoleri that Riba had refused to send a porter to get her car, Riba told plaintiff he was sorry and asked to make it up to her. As he said this, Riba gyrated his hips back and forth, pushing his pelvis out toward her in a sexually offensive manner.
• At least once every other week through September 24, 2001, Riba looked directly at plaintiff and gave her "the finger."
• Through September 24, 2001, every time plaintiff walked past Riba in the service area, she heard Riba grumble under his breath at her.
  Defendant urges the court to disregard these factual assertions as a sham attempt to create an issue of fact to survive summary judgment. Defendant notes that these assertions appear for the first time in plaintiffs affidavit filed in support of her response to defendant's summary Page 5 judgment motion, and that they contradict plaintiff's deposition testimony. Specifically, on November 18, 2003, plaintiff testified in her deposition that Riba did not make any comments directly to her after February 2001. At the continuation of her deposition on December 3, 2003, plaintiff testified that she did not recall if Riba made any derogatory comments in reference to her after May 2001, and that she was not aware of Riba referring to her as a "slut" after May 2001.

  Affidavits that contradict the affiant's deposition are entitled to no weight in summary judgment proceedings, unless the affidavit contains a plausible explanation for the discrepancy. Beekel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 623-24 (7th Cir. 2002). Plaintiff concedes in her affidavit that she recalled the incidents at issue after her deposition, but explains that "[d]ue to the obvious stress and trauma 1 have been under, my memory has been effected [sic] and after several hours of deposition, I was having ...


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