United States District Court, N.D. Illinois
May 7, 2004.
SHARLA ROBERTS, Plaintiff,
COUNTY OF COOK, COOK COUNTY OFFICE OF THE INSPECTOR GENERAL, and TIMOTHY FLICK, individually and in his official capacity, Defendants
The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Sharla Roberts sued her employer, the County of Cook, alleging sexual
harassment, sex discrimination and retaliation in violation of Title VII
and intentional infliction of emotional distress. She also sued her
supervisor, Timothy Flick, the director of Cook County's Office of the
Inspector General, alleging a denial of equal protection in violation of
42 U.S.C. § 1983 and intentional infliction of emotional distress.
The Court held a jury trial starting on January 13, 2004, and the jury
returned a verdict for Roberts on all but her sex discrimination claim
against Cook County. The jury awarded her $100,000 in compensatory
damages as well as $400,000 in punitive damages against Flick on the
§ 1983 claim.
Defendants argue they are entitled to a new trial because an
evidentiary ruling was in error. In the alternative, they request
judgment notwithstanding the verdict on all counts. For the reasons
stated in open court, Defendants' motion for new trial is granted. The
Court will briefly address Defendants' arguments for judgment notwithstanding the verdict to
provide guidance for the retrial.
We first note the appropriate standard for reviewing a motion for
judgment notwithstanding the verdict or as a matter of law. When
presented with such a motion, the Court must "examine the evidence
presented, combined with any reasonably drawn inferences, and determine
whether that evidence sufficiently supports the verdict when viewed in
the light most favorable to the non-moving party." Tincher v. Wal-Mart
Stores, Inc., 118 F.3d 1125, 1129 (7th Cir. 1997) (citation omitted). The
Court is limited to "assessing whether no rational jury could have found
for the plaintiff." Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 630
(7th Cir. 1996) (citation omitted). "A motion for judgment as a matter of
law should be granted only when there can be but one conclusion from the
evidence." Id. at 636 (citation omitted). The Court applies this standard
in reviewing Defendants' arguments for judgment on each count.
1. Sexual harassment
The County argues it is entitled to judgment as a matter of law on
Roberts' hosfile work environment claim because Roberts did not suffer a
tangible employment action and failed to rebut the County's
Ellerth/Faragher affirmative defense. The standard of employer liability
for sexual harassment by a supervisor depends on whether the plaintiff
suffered a tangible employment action.
An employer is subject to vicarious liability to a
victimized employee for an actionable hosfile
environment created by a supervisor with immediate (or
successively higher) authority over the employee. When
no tangible employment action is taken, a defending
employer may raise an affirmative defense to liability
or damages, subject to! proof by a preponderance of
the evidence. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The crux of the
County's position is that a substantial reduction in job responsibilities
does not constitute a tangible employment action as a matter of law. The
Court rejects this contention.
In EIlerth the Supreme Court defined a tangible employment action as "a
significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits." Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (emphasis added).
The EEOC has elaborated on this definition, explaining that
"significantly changing an individual's duties in his or her existing job
constitutes a tangible employment action regardless of whether the
individual retains the same salary and benefits." EEOC, Enforcement
Guidance: Vicarious Employer Liability For Unlawful Harassment by
Supervisors, 1999 WL 33305874, at * 5 (June 18, 1999).
Just last month, the Seventh Circuit stated that a materially adverse
employment action may occur when "`the employee is not moved to a
different job or the skill requirements of his present job altered, but
the conditions in which he works are changed in a way that subjects him
to a humiliating, degrading, unsafe, unhealthful, or otherwise
significantly negative alternation in his workplace environment an
alternation that can fairly be characterized as objectively creating a
hardship, the classic case being that of the employee whose desk is moved
into a closet." Tart v. Illinois Power Co., F.3d , 2004 WL 877580, at
*12 (7th Cir. April 26, 2004) (emphasis in original; quoting Herrnreiter
v. Chicago Housing Authority, 315 F.3d 742, 744 (7th Cir. 2002)). The
court noted that "a materially adverse change may be indicated by, among
other things, `significantly diminished material responsibilities or
other indices that might be unique to a particular situation."' Id., at *11 (quoting Crady v. Liberty National
Bank & Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)).
Accordingly, the court found the plaintiffs suffered adverse employment
actions when their "reassigned jobs were objectively inferior; they
involved far less skill and significantly harsher working conditions than
the plaintiffs' prior positions." Id., at*10.
Roberts presented evidence that she suffered what amounted to a
"reassignment with significantly different responsibilities" under
Ellerth. She testified at trial that after she refused Flick's sexual
advances, he substantially reduced her job responsibilities. Roberts
admitted that Flick did not decrease her salary, but she equated her
reduced job duties to that of a "glorified cleaning lady." "Sometimes job
responsibilities can be quite intellectually stimulating, but other
duties can be routine at best." Dahm v. Flynn, 60 F.3d 253, 257 (7th
Cir. 1994). The jury reasonably could have found that Flick reduced
Roberts' responsibilities to only the most menial of duties. In a
factually similar case, the Seventh Circuit ruled that such a reduction
in responsibilities could constitute an adverse employment action. The
plaintiff in Hoffman-Dombrowski v. Arlington International Racecourse,
Inc., 254 F.3d 644 (7th Cir. 2001), claimed that she suffered an adverse
employment action when her employer transferred her and decreased her
responsibilities from preparing the budget and payroll and staffing
hundreds of clerks to emptying lottery machines and scheduling one
part-time clerk and four full-time clerks. Id. at 649. The Seventh Circuit
found that even though the transfer did not affect her title or
compensation, "a rational jury could find that her responsibilities were
diminished to such an extent that she suffered an adverse employment
action." Id. at 651. Following this case law and viewing the evidence in
the light most favorable to Roberts, as we must on a motion for judgment as a matter of law, the Court finds a rational jury could find
that Roberts suffered a tangible employment action and, accordingly, the
County was not entitled to the Ellerth/Faragher affirmative defense.
The County argues that it is entitled to judgment as a matter of law on
Roberts' retaliation claim because she failed to prove that she suffered
an adverse employment action after complaining about Flick's behavior to
Mark Kilgallon of the Cook County Bureau of Human Resources. To prove a
claim of retaliation, the plaintiff must show that she "engaged in
protected activity . . . and as a result suffered the adverse employment
action of which [s]he complains." Stone v. City of Indianapolis Public
Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002). The County
concedes that Roberts' complaint to Kilgallon constituted protected
activity, but it argues that the transfer mat resulted was not an adverse
employment action. In her response, Roberts does not contend that she
suffered an adverse employment action when she was transferred from the
Inspector General's office to another department after filing her
complaint. Rather, she argues that each time she rebuffed Flick's
advances she engaged in protected activity and that the reduction in
responsibilities that resulted constituted adverse employment action. The
jury's verdict must stand if either Roberts' transfer was an actionable
harm she suffered as a result of her complaints to Kilgallon or Roberts'
refusal of Flick's advances was protected activity for which her job
responsibilities were significantly reduced. Because the Court has
already determined that substantial reductions in job responsibilities
can constitute an adverse employment action, and Defendants concede that
Roberts' complaints to Kilgallon were protected activity, a reasonable
jury could have found for Roberts if (1) Roberts' transfer from the Inspector General's office and away from Flick
constituted an adverse action; or (2) resisting the sexual advances of a
supervisor constitutes protected activity.
The County argues that Roberts cannot claim that she was retaliated
against for complaining to Kilgallon unless her lateral transfer
constituted an adverse employment action. It relies on a 2001 Seventh
Circuit decision stating that "a lateral transfer without a loss in
benefits does not constitute an adverse employment action." Stutler v.
Illinois Department of Corrections, 263 F.3d 698, 702 (7th Cir. 2001)
(citations omitted). It is unclear whether Stutler is still good law. A
year after Stutler was decided, the Seventh Circuit stated that "[w]e do
not mean to suggest . . . that retaliation, to be actionable under Title
VII (or other statutes), has to involve an adverse employment action. It
does not." Herrnreiter, 315 F.3d at 745. The court declined to determine
whether an act of retaliation that "does take the form of an employment
action" must be "as severe as would be required if the action were
charged as discrimination rather than as retaliation," Id. at 746
(emphasis in original). But more recently, in Johnson v. Cambridge
Industries, Inc., the Seventh Circuit stated that even if a "more
generous standard" governs retaliation cases, "the employee must complain
of some action on the employer's part that causes her to suffer a real
harm." 325 F.3d 892, 902 (7th Cir. 2003). The Court need not wade further
into these murky waters, however, because Roberts' alternative theory is
sufficient to sustain her retaliation claim.
Roberts argues that Flick retaliated against her by reducing her job
responsibilities when she engaged in the protected activity of rebuffing
his sexual advances. Because we have already found under the
comparatively higher standard of harm that applies to discrimination
cases that a substantial reduction in job responsibilities may constitute
an adverse employment action, the viability of Roberts' second theory of retaliation does not depend on the
proper measure of harm in retaliation cases. Rather, the viability of
Roberts' theory depends on whether refusals of sexual advances constitute
protected activity. As Roberts notes, the Seventh Circuit has declined to
decide whether the rejection of sexual advances constitutes "a
statutorily protected activity within the meaning of Title VII." Murray
v. Chicago Transit Authority, 252 F.3d 880, 890 (7th Cir. 2001). And it
appears no other Courts of Appeals have addressed the issue. Little v.
National Broadcasting Co., 210 F. Supp.2d 330, 385 (S.D.N.Y. 2002)
(citing Second, Third and Seventh Circuit cases declining to decide
whether a rejection of sexual advances is protected activity). The Eighth
Circuit has considered a claim of retaliation for refusal of sexual
advances, but it did not discuss whether refusal of sexual advances
constituted protected activity because it found the retaliation claim
deficient on other grounds. See Henthorn v. Capitol Communications,
Inc., 359 F.3d 1021, 1028-29 (8th Cir. 2004).
District judges are divided on the issue. Several judges of this Court
have stated that the refusal of sexual advances does not constitute
protected activity, see Jones v. County of Cook, No. 01 C 9876, 2002 WL
1611606, at * 4 (N.D. III. July 17, 2002); Bowers v. Radiological Society
of North America, Inc., 57 F. Supp.2d 594, 599 (N.D. III. 1999); Speer
v. Rand McNally & Co., No. 95 C 6269, 1996 WL 667810, at *8 n.4 (N.D.
III. Nov. 15, 1996), Finley v. Rodman &Renshaw, Inc., No. 93 C 5504,
1993 WL 512608, at *3 (N.D. Ill. 1993), as has one judge in the District
of Maryland, Rachel-Smith v. FTData, Inc., 247 F. Supp.2d 734, 748-49
(D. Md. 2003), and three in New York. See Fitzgerald v. Henderson,
36 F. Supp.2d 490, 499 (N.D.N.Y. 1998), off"d in part, rev'd in part on
other grounds, 251 F.3d 345 (2d Cir. 2001); Rashid v. Beth Israel Medical
Center, No. 96 Civ. 1833, 1998 WL 689931, at *2 (S.D.N.Y. Oct. 2, 1998);
Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y.
1996). But there is an equal number of district court judges who have
found the refusal of sexual advances to constitute protected activity.
See Little, 210 F. Supp.2d at 385-86; Black v. City & County of
Honolulu, 112 F. Supp.2d 1041, 1049 (D. Haw. 2000); Farrell v. Planters
Lifesavers Co., 22 F. Supp.2d 372, 392 (D.N.J. 1998), aff'd in part,
rev'd in part on other grounds, 206 F.3d 271 (3d Cir. 2000); Fleming v.
South Carolina Department of Corrections, 952 F. Supp. 283, 288 (D.S.C.
1996); Armbruster v. Epstein, No. Civ. A 96-CV-1059, 1996 WL 289991, at
*3 (E.D. Pa. May 31, 1996); EEOC v. Domino's Pizza, 909 F. Supp. 1529,
1536 (M.D. Fla. 1995); Burrell v. City University of New York,
894 F. Supp. 750, 761 (S.D.N.Y. 1995); and Boyd v. James S. Hayes Living
Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D. Tenn. 1987).
The Court agrees with those district judges who have found that
refusing sexual advances is protected activity under Title VII. Title VII
makes it unlawful "for an employer to discriminate against any of his
employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a)
(emphasis added). Sexual harassment is clearly an unlawful employment
practice under Title VII: the Supreme Court has read
42 U.S.C. § 2000e-2(a)(1) as prohibiting "sexual harassment so severe or
pervasive as to alter the conditions of [the victim's] employment and
create an abusive working environment," Faragher, 524 U.S. at 786
(internal quotation marks and citation omitted). Opposing sexually
harassing behavior constitutes "oppos[ing] any practice made an unlawful
employment practice" by Title VII, and accordingly it is activity
protected by § 2000e-3(a). This comports with the purpose of Title VII's
anti-retaliation provision. The victim of harassment should not fear retaliation if she
resists sexually predatory behavior by colleagues or supervisors. See
Armbruster, 1996 WL 289991, at *3 ("[R]efusing sexual advances itself
should be viewed as protected conduct under anti-discrimination law, for
which employees should not be made to fear retaliation.").
Viewing the evidence in the light most favorable to Roberts, a
reasonable jury could find that Roberts repeatedly resisted Flick's
sexually harassing behavior and that, as a result, Flick substantially
reduced her job responsibilities. Therefore, the County is not entitled
to judgment as a matter of law on Roberts' retaliation claim.
3. Section 1983
There is no question that "[s]exual harassment of female employees by a
state employer constitutes sex discrimination for purposes of the equal
protection clause of the fourteenth amendment." Bohen v. City of East
Chicago, Indiana, 799 F.2d 1180, 1185 (7th Cir. 1986). As such, a local
governmental employee like Roberts can sue for sexual harassment under §
1983. See, e.g., Walker v. Taylorville Correctional Center, 129 F.3d 410,
414 (7th Cir. 1997) (finding prison inmate had stated a claim for sexual
harassment under § 1983). Flick argues that he is entitled to judgment as
a matter of law on Roberts' § 1983 claim because she failed to prove that
he acted under color of law. Section 1983 states that
[e]very person who, under color of [law] . . .
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity,
or other proper proceeding for redress.
42 U.S.C. § 1983. Flick essentially argues that because a private
employer could sexually harass a subordinate the way the jury found he
harassed Roberts, he must not have been acting under color of law. The Court disagrees.
Harassment by a governmental supervisor of a subordinate employee on
the job constitutes a violation of § 1983 regardless of whether a private
employee could have engaged in the same type of harassing conduct.
Liability under § 1983 for harassment turns on whether Flick engaged in
the harassing conduct in his official capacity as Roberts' supervisor and
whether he had access to her by virtue of his government position.
Walker, 129 F.3d at 413-14. For example, in Annis v. County of
Westchester, 36 F.3d 251, 254 (2d Cir. 1994), the court found that
"[t]here can be no question" that the plaintiff's supervisors were
amenable to suit for harassing and discriminating against the plaintiff
"inasmuch as they were conducting themselves as supervisors for a public
employer and thus were acting under color of state law." Flick was
Roberts' supervisor and had day-to-day contact with her because she
worked for him in his capacity as Inspector General. For this reason,
Flick's alleged conduct was under color of law for purposes of § 1983. He
is not entitled to judgment as a matter of law.
4. Intentional infliction of emotional distress
Defendants argue they are entitled to judgment on Roberts' intentional
infliction of emotional distress (IIED) claim because it is preempted by
the Illinois Human Rights Act (IHRA). The Court rejected an identical
argument in Temores v. SG Cowen, 289 F. Supp.2d 996, 1006-07 (N.D. III.
2003). We quote the two paragraphs of that decision explaining why the
IHRA does not preempt an IIED claim:
The Illinois Supreme Court has held that common law
claims are preempted if they are "inextricably linked
to a civil rights violation such that there is no
independent basis for the action apart from the [IHRA]
itself." Maksimovic v. Tsogalis, 177 III.2d 511, 517,
687 N.E.2d 21, 23 (1997). The IHRA does not bar common
law tort claims simply because they are "factually
related to incidents of sexual harassment," Id. at 516, 687 N.E.2d at 23;
rather the question is whether the common law claim is
premised upon legal obligations and prohibitions that
exist as a matter of Illinois law only under the Act
and have no other independent foundation. See, e.g.,
Bartoli v. Applebee's Restaurant, No. 00 C 5954, 2001
WL 40798, at *2 (N.D. III. Jan. 17, 2001), If the
"plaintiff has established a basis for imposing
liability on the defendant independent of any
statutory cause of action under the Act," the claims
are not preempted by the IHRA. Maksimovic, 177 III.2d
at 514, 687 N.E.2d at 22.
The Illinois Supreme Court has specifically and
unequivocally held that assault, battery and false
imprisonment "are long-recognized tort actions which
exist wholly separate and apart from a cause of action
for sexual harassment under the [IHRA]" and thus are
not preempted by the state statute. Id. at 517, 687
N.E.2d at 23. The Court concludes that the same is
true of Temores' IIED claim. Such claims have been
recognized by the Illinois courts as independent
actions since long before the adoption of the IHRA.
See Knierim v. Izzo, 22 III.2d 73, 174 N.E.2d 157
(1961). The Court is cognizant of the fact that the
Seventh Circuit recently found an IIED claim against
an employer that "depend[ed] on allegations of sexual
harassment" to be preempted by the IHRA. Quantock v.
Shared Mktg. Services, Inc., 312 F.3d 899, 905 (7th
Cir. 2002). But in this regard, the final word on
whether an Illinois statute preempts an IIlinois claim
comes from Illinois' highest court, which in
Maksimovic rejected an analysis based on the factual
relationship between a claim and the provisions of the
IHRA in favor of an analysis based on the source of
the legal duty underlying the claim.
Temores, 289 F. Supp.2d at 1006-07. Because Roberts' IIED claim is not
based on the violation of a legal duty created by the IHRA, Defendants
are not entitled to judgment as a matter of law on the IIED claim,
For the reasons stated above and in open court, the Court grants
Defendants' motion for a new trial, but denies their motion to amend the
judgment [docket # 77].
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