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May 7, 2004.

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


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.

 2. Retaliation

  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 ...

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