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WARD v. WASHINGTON MUTUAL

September 29, 2004.

REGINA M. WARD, Plaintiff,
v.
WASHINGTON MUTUAL, Defendant.



The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge

MEMORANDUM OPINION AND ORDER

Regina Ward has sued her employer Washington Mutual under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, alleging sexual harassment, racial harassment, and retaliation for complaining about the harassment. In her complaint, Ward sought both damages and injunctive relief. In November 2003, the Court partially granted Washington Mutual's motion to compel arbitration, ruling that under the parties' agreement, claims for damages were subject to arbitration but claims for injunctive relief were not, and that Ward might be entitled to injunctive relief if she prevailed on her claims. Washington Mutual has now moved for summary judgment on Ward's injunctive relief claims. Though the arbitration on the overlapping damages claims is ongoing, neither party has asked the Court to defer ruling.

For the reasons stated below, the Court grants summary judgment in Washington Mutual's favor on Ward's claims for injunctive relief relating to sexual harassment and retaliation but denies summary judgment on the claim for injunctive relief relating to racial harassment. Discussion

  Summary judgment is proper only if, after considering all of the evidence and drawing all reasonable inferences in favor of the non-moving party, the Court determines that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). A genuine issue of material fact exists when a reasonable finder of fact could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

  1. Injunctive relief generally

  Once discrimination is shown, Title VII provides courts with broad equitable powers to issue injunctions addressed to the proven conduct. EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir. 1997). The standard is "whether the discriminatory conduct could possibly persist in the future." Id. at 1578-79; see also, Bruso v. United Air Lines, Inc., 239 F.3d 848, 864 (7th Cir. 2001); EEOC v. Gurnee Inn Corp., 914 F.2d 815, 817 (7th Cir. 1990). The plaintiff is not required, however, to show a pattern or practice of discrimination or to produce evidence going beyond her own particular situation. Bruso, 239 F.3d at 864.

  2. Sexual harassment claim

  Sexual harassment is actionable under Title VII when it is so "severe or pervasive" as to "alter the conditions of the victim's employment and create an abusive working environment." Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) (internal citations omitted). To sustain her claim against Washington Mutual, Ward must provide evidence from which a fact finder reasonably could conclude that she was subjected to unwelcome harassment based on her gender which unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment, and that there is a basis to impose liability on Washington Mutual. See, e.g., Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). The offensiveness of the work environment is evaluated both from the subjective standpoint of the plaintiff and from the objective standpoint of a reasonable person in the plaintiff's position. Faragher, 524 U.S. at 787. The factors considered include the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work environment." Id. at 788 (internal citation omitted).

  Ward's sexual harassment claim centers on her interactions with Lisa Froustis, a coworker who served as assistant to Ward's supervisor, Robert Jones. Ward says that in August 2001, Froustis put her hands on Ward's shoulders and jumped up and down, in what Ward says was a suggestive manner. Ward also claims that in September 2001, while at a bar with Ward and Jones during a business trip to Seattle, Froustis put her hand on Ward's neck and stated, "you know that I want you." Finally, Ward contends, on a number of occasions in 2001 and the first half of 2002, Froustis came into her work space, ostensibly to speak with other workers, and put her buttocks near Ward's face.

  Isolated incidents of sexual harassment are not deemed to have altered the conditions of employment, and are thus insufficient to give rise to a viable Title VII claim, unless they are "extremely serious." See Faragher, 524 U.S. at 788. The Seventh Circuit's recent decision in McPherson v. City of Waukegan, 379 F.3d 430 (7th Cir. 2004), illustrates this principle. In McPherson, the court assessed a sexual harassment claim that arose from a male supervisor asking a female employee about what color brassiere she was wearing, asking in a suggestive manner if he could "make a house call" to her home on a day when she called in sick, and pulling back her tank top with his fingers. The court held that these incidents were too isolated and not severe enough to create an objectively hostile work environment. Id. at 438. The same is true in this case. Though Froustis' alleged advances on Ward were unquestionably inappropriate and undoubtedly offensive to Ward, a fact finder could not reasonably conclude that these incidents sufficed to create an objectively hostile working environment of the type required to violate Title VII.

  Ward also relies on evidence of sexually-oriented conduct directed to persons other than herself. Specifically, she contends that Froustis engaged in inappropriate sexual relationships with Jones and Alex Ho, another supervisor; that Froustis made sexual advances towards a coworker, Phalice Tate; that another co-worker, Levi Lerner, made an inappropriate sexuallyrelated comment about Tate to Tate and others; and that Jones allowed employees he supervised to engage in group-kissing and to look at pornography at work. But the effect of secondhand harassment on a plaintiff's work environment is "obviously not as great as harassment directed toward [the plaintiff] herself." Patt v. Family Health Systems, Inc., 280 F.3d 749, 754 (7th Cir. 2002). This evidence, even when considered in conjunction with Ward's evidence about Froustis' behavior toward her, does not alter our conclusion that Ward cannot sustain a sexual harassment claim against Washington Mutual.

  3. Racial harassment claim

  In support of her claim that she was subjected to a racially hostile work environment, Ward alleges that she received five racially offensive notes that were put in her desk by an unknown person or persons over a span of approximately ten months: March 13, 2002; May 6, 2002; June 22, 2002; late 2002; and January 2003. The notes read as follows: "Stop trying to be white, niggers don't play the violin"; "1 Down, 2 To Go" (referring to one black female who had been fired, while two others remained employed); "We know where you live black bitch, the other 2 black bitches are gone you need to go too" (by this time the other black female in the office had resigned); "If you have a problem with the cold go back to Africa bitch!"; and "stupid bitch." Ward claims the notes frightened her, causing her to take time off of work and to keep to herself while at work.*fn1 She also claims to have turned down a promotion within her department because of the harassment.

  According to Ward, in July 2002, after she received the third note, she brought the notes to the attention of Steven Durrbeck, her supervisor at the time. She says that Durrbeck sloughed off her complaint, saying only that "we have immature people" in the department. Ward contends that he showed no concern for her complaints, took no action to discover the perpetrator(s), and did not advise his superiors of what had occurred. Ward says that after Durrbeck failed to respond, she brought the notes to the attention of Marcia McMahon, an employee relations representative. McMahon gave a copy of the notes to Daud Mahmud, the director of the facility where Ward worked. Mahmud met with Ward and promised he would investigate and put a stop to the offensive conduct. But there is evidence that no action was taken for five months after this meeting. And Ward contends that the only action that was taken — requiring employees to attend a diversity ...


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