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Tobin v. Irwin Mortgage Corp.

March 31, 2006

KATHLEEN TOBIN, PLAINTIFF,
v.
IRWIN MORTGAGE CORP., DEFENDANT.



The opinion of the court was delivered by: Judge John A. Nordberg

MEMORANDUM OPINION AND ORDER

In late 1998, plaintiff Kathleen Tobin was hired in an entry-level position at the Chicago branch of defendant Irwin Mortgage Corporation ("Irwin"). A few months later, she and other employees at her branch (including her supervisor) attended a two-day, company-wide meeting in Indianapolis. She alleges that, late in the evening after a night of drinking, her supervisor made a sexual advance. Although she tried to resist his advances, by saying no several times, she eventually gave in and had sexual intercourse with him in his hotel room because she feared that she would lose her job if she did not.

Plaintiff never mentioned this incident to her employer for almost three years even though, as she further alleges, her supervisor made ongoing sexual comments in the workplace, a couple of which she claims were allusions to their earlier sexual encounter. The reason for failing to come forward sooner, she again explains, is that she feared losing her job. But in late January 2002, she somehow overcame this fear and complained to Irwin's Human Resources department about the one encounter and subsequent comments.

A week after plaintiff complained, Irwin fired the supervisor. In May 2002, plaintiff filed an EEOC charge and then, in June 2003, filed this lawsuit asserting a single Title VII claim for sexual harassment. During this entire time, plaintiff continued to work in her same job and experienced no more harassment. In February 2004, after several changes had occurred in Irwin's corporate operation that affected plaintiff's job and after her branch experienced a downturn in business, plaintiff's new supervisor let her go as part of a staff reduction. Plaintiff then filed an amended complaint adding a second claim for retaliation because she believes that the real reason she was fired was to get back at her for attending her deposition in this case, which took place the week before she was fired. Irwin has filed a motion for summary judgment in which it argues that both claims suffer from numerous defects.

FACTS

In October of 1998, plaintiff was 26 years old, married, and working as a bartender. One of her customers worked at Irwin and told her she should apply for a job. She did so and was interviewed by David Tebelman, the branch manager, who recommended that she be hired. The recommendation was approved by Nick Vracas, the Regional Manager, and plaintiff began work as a loan officer trainee on November 9, 1998. Her salary was $24,000 a year. Two months into the job, she decided that she did not want to be a loan officer and was allowed to move into an operational position working on various marketing and compliance projects.

Irwin's Anti-Harassment Policy

It is undisputed that before plaintiff began working for Irwin and continuously thereafter, Irwin has had an Anti-Harassment Policy and Complaint Procedure, which was contained in its employee handbook and also in a separate document known as the Irwin Mortgage Code of Conduct. Irwin also had a practice of giving these documents to new employees and having them sign acknowledgments confirming that they had received them. Consistent with this practice, when she started work, plaintiff signed an acknowledgment -- actually two acknowledgments, one stating that she had received the Code of Conduct and another one stating that she had received the "Employee Benefits Package manual," which Irwin employees testified included a copy of the handbook. Despite signing these two acknowledgments, plaintiff testified in her deposition that she did not recall seeing the employee handbook and did not even know about the Code of Conduct.

Prior to 1998, Irwin kept the handbook in paper form at each branch office. But in 1998, it began putting it on its "intranet," which was an internal computer network available to Irwin employees including plaintiff. The company announced this change to all employees in a February 6, 1998 memo, which stated that the handbook would now be offered "primarily on Irwin Mortgage's intranet site" so that employees could access the entire handbook and print individual pages as needed.*fn1 Plaintiff testified that she knew, as of July 2001, that the handbook was on the intranet.*fn2

In addition the written policy, Irwin had periodic training on its anti-harassment policy. As discussed below, Irwin's president, Bob Griffith, made a presentation on this policy at the February 1999 conference. Also, in November 2002, Irwin conducted a mandatory anti-harassment training session for all employees in the Chicago branch.

The February 1999 Conference

On February 3 and 4, 1999, plaintiff, Tebelman, other employees from the Chicago branch, and Irwin employees from different states attended a two-day company conference in Indianapolis. Plaintiff rode to the conference with Patrick Coyle, a co-worker from her branch.

On the evening of February 3rd, plaintiff, Tebelman, Coyle and several others gathered at some point in a hospitality suite at their hotel. They were drinking. Over the course of the evening, plaintiff would by her own admission consume "quite a bit" of alcohol. The group left the hotel suite and went to a dance club where they continued drinking. Later they returned to the suite and watched television, drank some more, and smoked cigarettes.

At some point, plaintiff went to the bathroom and returned to find that everyone had left except Tebelman who was sitting on one of several couches on the room.*fn3 After returning from the bathroom, plaintiff went to the couch on which Tebelman was sitting and sat down next to an ashtray. She was smoking. Then Tebelman began his sexual advance. In her deposition, taken five years later, plaintiff described the event as follows:

We were watching some TV. Might have been music or MTV or something like that. It got -- he was just being real friendly. I don't remember [if we were having a conversation.] I am sure we were, but I don't recall what. I remember, you know, trying to kind of scoot away. No. Stop. I was uncomfortable with it.

[I told him to stop.] And he just continued to be real friendly and, you know, real sweet and talking and being very persuasive. I just remember him being real sweet and persuasive. I can't remember distinctly what he said. [] He just continued groping. And I was very uncomfortable with it. But I was trying to be polite. [He was] rubbing, touching, feeling. All over. On my back. Around my stomach. Around my chest. I believe that [he touched my breasts] a little while later. A few minutes later. I was very uncomfortable. Trying to be polite. And kind of moving around. He was trying to get his hand under my shirt. I was not real interested in it. I kept saying no, no. And he was just persuasive and persistent [i]n continuing to grope me. It just continued. Eventually I just finally gave in [b]ecause I felt as though I couldn't say no anymore. I mean, I had tried. (Dep. 107-110.) The two then walked down the hall to Tebelman's room and had sexual intercourse.*fn4 Plaintiff said that she eventually stopped resisting Tebelman's advances because she was "[a]fraid of the whole situation. It was all getting out of control and I was afraid. I didn't know what to do." (Id. 111-12.)

At around 2:00 or 3:00 a.m., plaintiff went back to her hotel room. She immediately felt bad about the encounter. "I recall being on the elevator and feeling horrible." She was "emotionally sick," "very scared," and "shocked that it all had happened, belittled, embarrassed." She did not talk to anyone at that time about this incident because she was "too afraid, . . . too shocked, too embarrassed."

The Second Day Of The Conference

The next day, plaintiff attended the company's presentations, which lasted until 3:00 in the afternoon. According to the agenda of the meeting and as confirmed by other witnesses, the first session in the morning addressed the topics of regulatory compliance, strategic planning, and harassment. The portion on harassment related to Irwin's anti-harassment policy and was given by the company's president. Although plaintiff could not remember in her deposition the presentation on harassment, she did remember that she attended the first session because it involved a topic (regulatory compliance) that directly related to her job. From 11:30 until noon, Katrina Crubaugh gave a presentation on behalf of the Human Resources department. Plaintiff remembers leaving the conference when it ended at around 3:00 p.m.

After the Conference, Plaintiff Works Full-Time Until March 2000

After the conference, plaintiff returned to her marketing and compliance position and worked full-time from 8:30 a.m. until 5:00 p.m. In March, a month after the conference, Tebelman sent two memos to Nick Vracas seeking approval for a raise in plaintiff's salary from $24,000 to $30,000 a year. Tebelman explained that the raise was justified because plaintiff had temporarily taken over certain marking and compliance jobs and had "done such a fantastic job" that Tebelman wanted to make them her primary duty. He further explained that, since she is sacrificing additional earnings as a Loan Officer, he needed to "reward her" with an increase to $30,000. The second memo a week later stated that he needed to make the offer "in order to have her agreement."*fn5

A year later, in March 2000, plaintiff was pregnant and experiencing some difficulties and wanted to work from home. She went to Tebelman to talk about this possibility. Tebelman, and Laura Koselke who was then the Operations Manager, approved plaintiff's request and allowed her to work from home, only coming into the office one day a week. It was initially anticipated that this would be temporary.

On April 25, 2000, plaintiff gave birth to a boy who, as a result of problems with the delivery, had physical problems that would require full-time care. Because she wanted to provide full-time care for her son, plaintiff requested that she be allowed to continue working at home. Tebelman again granted this request. Plaintiff was the only member of the office staff who was allowed to work at home. While at home, plaintiff continued to perform all her regular duties in addition to providing full-time care for her son.

Tebelman's Comments From 1999-2002

In the three-year period after the Indianapolis conference until late January 2002 when plaintiff finally complained about Tebelman's conduct, plaintiff says that Tebelman made "ongoing sexual comments, remarks, and overtones." (Def. Ex. 7.)*fn6 In fact, she said that she "always heard something each day [she] was there." She alleged that Tebelman sometimes spoke at the lunchroom table about his sexual experiences and dates that he went on. However, although plaintiff generally alleged that Tebelman made ongoing comments, she only identified the following six specific comments, which we set forth in chronological order.*fn7

The first specific comment was allegedly made in August 1999 -- approximately six months after the Indianapolis conference -- when plaintiff told Tebelman that she was pregnant. He responded: "Whose baby is it? Mine?" (Def. Ex. 7.) Plaintiff found the comment "very offensive," although she did not believe that it was physically possible that the baby was his.

The second comment occurred in July 2000, eleven months after the first one, when plaintiff brought her son to the office. Tebelman allegedly said: "Oh, is that little David?" Plaintiff answered yes because her husband's name was David. But she was privately upset because she felt Tebelman was making a reference to their earlier encounter.

The third comment was made in December 2001, about sixteen months later. A former employee came to the office to show off her engagement ring. Tebelman allegedly expressed surprise that she that she received such a large ring and said: "I thought you don't give Blow Jobs, how did you get such a big ring?" (Ex. 7.) This comment was not directed at plaintiff but she, along with three other employees, were nearby when it was made.

The fourth comment took place on January 8, 2002. Tebelman was near plaintiff's desk when Artie Kalousek and Norm Houser asked him why he was so stressed out. Tebelman allegedly stated: "Maybe it is lack of sex, Do you think Kate would be interested in having sex with me, I doubt it." According to plaintiff, Kalousek "tried to pacify the situation by saying that I was a married woman, not to mention I was married to a big cop." Plaintiff did not respond to the comment in any way, and did not even turn around. But she later that day went on the intranet and reviewed the anti-harassment policy.

The fifth and sixth comments happened on January 22, 2002. Plaintiff described them as follows:

I went to Dave Tebelman's office to go over some marketing emails with him. When I told him what I wanted to discuss he said "Only if they are e-mails with naked women on them." I continued to discuss the marketing and he decided that we would hold off on the postcards because he thought we might be switching companies. I inquired about that and asked if I was included in the move. I asked if I would still be needed to do marketing and databases and compliance if we were to switch. He said, "I didn't include you or not-include you." I was fearful of what he was saying about the future of my employment. He then said, "But for some Sexual Favors I will consider keeping you on." I tried to ignore that comment but I was very offended. He continued to tell me of the uncertainty of my position. I tried to reinforce to [him] all of my responsibilities and duties that my job entails but he still was uncertain of my future employment. (Ex. 7.) Although Tebelman strongly denied making these two specific comments, he agreed that a ...


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