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September 27, 2005.


The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge


Plaintiff Kathleen O'Phelan filed this lawsuit against her employer, Federal Express Corporation ("FedEx") alleging that she was subjected to a hostile work environment because of her gender and pregnancy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). She also alleges that she was retaliated against for complaining about the hostile work environment. For the reasons set forth below, FedEx's motion for summary judgment is denied.*fn1


  O'Phelan was hired by FedEx in April 1994 as a cargo handler at its facility at O'Hare International Airport in Chicago, Illinois. On her application for employment was a notice stating in large capital letters, "IMPORTANT — PLEASE READ AND SIGN," below which were printed the terms of employment. The last of these stated in part: "To the extent the law allows an employee to bring legal action against Federal Express, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming my lawsuit, whichever expires first." O'Phelan's signature appears directly beneath this statement on the application.

  On April 10, 2001, O'Phelan filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Illinois Department of Human Rights ("IDHR") alleging discrimination based on gender and pregnancy and also alleging that she had been retaliated against by FedEx for filing a complaint. O'Phelan's complaint and subsequent allegations of fact focused principally upon the behavior of John Parrilli, her team leader. Parrilli was responsible for assigning O'Phelan's tasks for the day, directing with whom she would work, recommending disciplinary action if necessary and authorizing overtime and time off when a supervisor was not available. O'Phelan alleges that, between 1999 and late 2001, Parrilli routinely importuned her for sex and/or other intimate acts. O'Phelan also alleges that when she refused, Parrilli would frequently fly into jealous rages and use vulgar or abusive language toward O'Phelan. O'Phelan also alleges that Parrilli would become upset if he observed her speaking to other men, and that he occasionally made inappropriate comments about O'Phelan's husband, children, and her 2001 pregnancy. O'Phelan alleges that Parrilli attempted to kiss her on a number of occasions, and even tried to force her to kiss him when she refused. She alleges that Parrilli stalked her around the workplace, followed her home, begged her to show him her breasts, and told her that if he could not "have her" he would make her life tough. Although O'Phelan alleges that Parrilli propositioned her almost every other day, she also admits that there were times when Parrilli would cease his importunings, but that he would later resume. Coworkers have stated that Parrilli and O'Phelan would at times appear to be friendly and at other times not speak to each other. Furthermore, O'Phelan admits that she occasionally had lunch with Parrilli, as she did with other coworkers, and that she occasionally encountered him at social functions outside the workplace. O'Phelan alleges that she complained to her supervisor, Fernando Camporese, but alleges that Camporese was ineffectual in curtailing Parrilli's behavior for more than brief intervals of time.

  On December 20, 2000, O'Phelan, Parrilli, and Camporese met with Christopher Surtz, the Senior Operations Manager at the site, in response to O'Phelan's allegations of harassment. At the meeting, O'Phelan complained to Surtz that Parrilli had been bothering her, and Surtz, in his sworn statement, has stated that he responded by asking Parrilli to cease and telling both O'Phelan and Camporese that they should immediately contact him should any other incidents of harassment occur. O'Phelan alleges that after the December 20 meeting, Parrilli's behavior became hostile and retaliatory; he threatened O'Phelan with termination on a number of occasions and demanded that she do heavy work, despite the fact that O'Phelan's doctor had recommended that she perform only light duties due to the possibility of miscarriage. Following one such incident, O'Phelan complained to Camporese, who suggested that she file a formal complaint with FedEx against Parrilli. Camporese then showed O'Phelan how to access the online form used by FedEx for filing such complaints.

  Tom Smith, the Managing Director, investigated O'Phelan's formal complaint, interviewing O'Phelan, Parrilli, Camporese, and various other workers at the FedEx site. Although Smith was unable to substantiate O'Phelan's claims of systematic harassment, he recommended that Parrilli be demoted from his position as team leader and that his starting time be altered so that he and O'Phelan would not be working alone together. Smith further recommended that Camporese be issued a `counseling' for failing to document O'Phelan's allegations, and that an offer of relocation be extended to him. Nevertheless, O'Phelan alleges, the retaliation continued, with Parrilli assigning her repeatedly to difficult tasks that normally rotated among members of the team. In March 2001, O'Phelan took three weeks of leave, allegedly because the stress induced by Parrilli's conduct was negatively affecting her pregnancy. At one point, O'Phelan alleges, an unknown person placed a pornographic magazine in her work mailbox. On March 8, 2001, O'Phelan submitted an FMLA Certification of Health Care Provider, stating that her symptoms were caused by job-related stress. On April 10, 2001, O'Phelan filed her complaint with the EEOC and IDHR.

  On May 30, 2001, another FedEx employee, Bill Tharge, filed a complaint against O'Phelan for allegedly lifting her shirt and exposing her bare stomach to show Tharge the extent of her pregnancy. O'Phelan denied the allegation to Surtz and claimed that this was another incident of retaliation.

  When O'Phelan's son, Michael Luis, was born, Camporese directed his secretary to post a notice, which stated: "KATHY BARROSO HAD A BABY BOY, MICHAEL LEWIS, ON 9/1/01. 7 Lb. 14 oz. 22 inches." (bold type and underlining in the original; Barroso is O'Phelan's married surname). O'Phelan alleges that this notice was less warmly worded than the customary birth announcements at FedEx and that because one of her coworkers had the surname "Lewis," the notice was a defamatory attempt to suggest that the African-American coworker was the father. O'Phelan claims that the note was another example of Camporese's retaliation. Camporese claims that it was a typographical error by his secretary.

  Parrilli began taking extensive medical leaves in October 2001 to seek treatment for cancer, to which he succumbed in May 2003. O'Phelan alleges that although the unfair delegation of work ceased at that time, she was still subject to "teasing" by other coworkers, who referred to her periodically as the "Black Widow." However, throughout her employment at FedEx (which continues to the present time), O'Phelan has consistently received superior performance evaluations from her supervisors and regular raises in pay. In December 2002, O'Phelan received her requested right to sue letter from the EEOC, and in January 2003 she filed suit against FedEx in this court, alleging violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act.


  Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A party opposing summary judgment must "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). There is no genuine issue for trial unless there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Id. at 248. The party moving for summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986).

  A. Enforceability of the Six Month Limit in Which to Bring Suit

  FedEx first claims that O'Phelan's suit is barred by the employment agreement, which precludes employees from bringing legal actions against FedEx if more than six months have passed since the events giving rise to the lawsuit. O'Phelan has alleged that she was subjected to a sexually hostile work environment extending from approximately November 1999 until February 2002 and suffered acts of retaliation from January 2001 through February 2002. FedEx asserts that because O'Phelan's lawsuit was filed in January ...

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