United States District Court, N.D. Illinois
May 17, 2004.
DOREEN BRANDON, PATRICIA A. BROWN, JOYCE KING, AND MARIAH WALLACE, plaintiff's; V. NESTLE USA, INC., Defendants
The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff's Doreen Brandon, Patricia A. Brown, Joyce King, and Mariah
Wallace are female African-American hourly employees at defendant Nestle
USA, Inc.'s ("Nestle") Franklin Park, Illinois manufacturing facility. A
white male named Michael Nebolsky began working as a supervisor at the
facility on May 25, 2001. Between that date and his August 29, 2002
termination, Mr. Nebolsky allegedly harassed the plaintiff's because of
their race and sex. In August 2002, each of the plaintiff's filed a
charge with the Illinois Department of Human Rights and Equal Employment
Opportunity Commission ("EEOC"), and each has received a right-to-sue
letter. On December 23, 2002, the four plaintiff's jointly filed the
instant complaint against Nestle, alleging violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.. Nestle now moves for
summary judgment. I GRANT the motion as to all claims. On a motion for summary judgment, I evaluate the admissible evidence in
the light most favorable to the non-moving party in order to determine
whether the evidence presents a genuine issue of material fact. Bennett
v. Roberts, 295 F.3d 687, 694 (7th Cir. 2002). There are two methods by
which a plaintiff may prove intentional discrimination by an employer
under Title VII. She may rely on direct evidence, or in the alternative,
she may rely on the burden-shifting method of proof established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
As a preliminary matter, Nestle argues that it is entitled to summary
judgment to the extent that the plaintiffs' claims are outside the scope
of their EEOC charges. While a Title VII plaintiff "need not allege in an
EEOC charge each and every fact that combines to form the basis of each
claim in her complaint," she can only pursue a claim of discrimination or
retaliation if it is "like or reasonably related to" the allegations of
the charge and grows out of those allegations. Cheek v. W. & S. Life
Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Here, none of the plaintiff's
alleged race discrimination in their EEOC charges. "An allegation of race
discrimination is not `like or reasonably related to' an allegation of
sex discrimination." Crawford v. Bank of Am., 986 F. Supp. 506, 508
(N.D. Ill. 1997) (Aspen, J.). Similarly, where the plaintiff's EEOC
charge does not allege retaliation or even that the plaintiff engaged in
some kind of protected activity, a claim for retaliation cannot lie. Peters v. Renaissance Hotel Operating Co.,
307 F.3d 353, 550 (7th Cir. 2002). None of the plaintiffs' EEOC charges
hint at race discrimination, and Ms. King's contains no suggestion of
retaliation. The motion for summary judgment is GRANTED as to these
theories of recovery.
To maintain an actionable claim that Mr. Nebolsky's conduct created a
hostile work environment at Nestle and thus constituted sexual harassment
in violation of Title VII, the plaintiff's must demonstrate that they
were harassed because of their sex. Hilt-Dyson v. City of Chicago,
282 F.3d 456, 462. (7th Cir. 2002). Title VII does not provide a cause of
action where a supervisor is abusive to male and female employees alike.
Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 346 (7th Cir. 1999).
In addition, this harassment must be severe or pervasive, both
objectively and subjectively offensive, so that a reasonable person would
find it hostile or abusive. Hilt-Dyson, 282 F.3d at 463. In determining
whether contested behavior creates an objectively hostile work
environment, a court may consider factors including the frequency of the
complained-of conduct, its severity, whether it is physically threatening
or humiliating, and whether it unreasonably interferes with an employee's
ability to work. Id.
The evidence submitted by both sides makes it abundantly clear that Mr.
Nebolsky was an unpleasant supervisor with poor management skills and
that his subordinates found his behavior toward them odious and inappropriate. It is less clear, however, whether Mr.
Nebolsky's sexually discriminatory behavior so poisoned the atmosphere at
the plant as to create a hostile working environment under Title VII.
Most of the unpleasant interactions the plaintiff's complain of,
including Nebolsky yelling at his subordinates, standing too close to
them, whispering into their ears, cursing, etc., characterized his
unprofessional interactions with male and female employees alike. The
plaintiff's admit Mr. Nebolsky "got in the face" of male employees,
engaged in shouting matches with them, and bumped into them, and that
male employees lodged complaints about Mr. Nebolsky with their union
stewards. Most of the plaintiffs' allegations involve such
non-gender-specific forms of harassment.
The gender-specific incidents cited by the plaintiff's include a number
of occasions when Mr. Nebolsky stood so close to female employees that
his shoulder touched their breasts (Ms. Brandon, Ms. Brown, Ms. King,
Ms. Wallace), a few occasions when he placed a hand on a female
employee's shoulder and slid it down toward her breasts (Ms. Wallace,
Ms. King), and isolated occasions when he snatched a telephone out of a
female employee's hand, thereby making contact with her breast (Ms.
Brandon), pulled at a female employee's shirt to reveal a necklace
underneath (Ms. King), grabbed the shoulders of a female employee (Ms.
King), and pulled a stool out from under a female employee, making
contact with her buttocks (Ms. King). While these interactions obviously, and rightly,
caused the plaintiff's distress, they do not cumulatively constitute an
objectively hostile work environment under Hilt-Dyson. Compare Ferguson
v. Chicago Hous. Auth., 155 F. Supp.2d 913, 917 (N.D. Ill. 2001)
(Bucklo, J.) (denying summary judgment to employer where a supervisor
propositioned an employee, attempted to "feel her up," or rubbed his body
against her every day over an extended period of time); Grant v. Murphy
& Miller Inc., 149 F. Supp.2d 957, 969 (N.D. Ill. 2001) (Shadur, J.)
(harassment is pervasive where plaintiff was hit on two to three times a
week over the course of eight months).
Thus, while the plaintiff's (and their male co-workers) apparently
suffered severe and pervasive harassment at Mr. Nebolsky's hands, they
suffered only sporadic and moderate sexual harassment which did not rise
to the level actionable under Title VII. Therefore, the defendants'
motion for summary judgment is GRANTED.
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