The opinion of the court was delivered by: Judge Blanche M. Manning
Plaintiff Nurdan Dawn Avdyli brings suit against Jo Anne Barnhart, the Commissioner of the Social Security Administration ("SSA"), for employment discrimination. Avdyli alleges that she was subjected to a hostile work environment because of her race, gender, and religion. The SSA moves for summary judgment. For the reasons provided below, the motion is granted.
A. Avdyli's Position at SSA
Avdyli, a Muslim white woman, is employed by the SSA as a teleservice agent. She has held this job since 1996. A teleservice agent takes calls that come into the teleservice unit through the SSA's national 800 number. There are approximately 200 teleservice agents. At the time that Avdyli started, the area where the agents sat was completely open, but in approximately 1998, partitions were put in and the agents now sit in cubicles. Each of the teleservice agents reports to one of nine first-line supervisors, and the first-line supervisors report to a manager.
B. Sexual Harassment Allegations
During her deposition, Avdyli testified that she was being sexually harassed at work by four people: Joseph Augustin, Peter Osborn, James Rivera, and Carlos Cisneros.
Augustin was not Avdyli's immediate supervisor, but was one of the nine supervisors in the teleservice center. Although Augustin was not Avdyli's direct supervisor, he had the power to approve or deny leave when employees called in for a shift, and assisted with problem calls referred by teleservice agents. Avdyli admits that she did not report Augustin's alleged harassment to her supervisor, Yuella Sharp. However, Avdyli states that she told a manager in Human Resources, whom Avdyli saw at the gym, that her workouts must be successful because "even . . . managers here are hitting on me."
According to Avdyli, Augustin sexually harassed her over a two-month period during the summer of 2003. The alleged harassment during that two-month period in 2003 consisted of Augustin: telling Avdyli that she had pretty hair and eyes, and that she looked "hot" in her pink workout clothes and was "gorgeous"--comments that offended Avdyli; telephoning Avdyli one Sunday and suggesting they get together; asking Avdyli if she planned to attend a concert given by a co-worker; giving Avdyli a copy of a promotion application (Form 45) to use as an example for amending her own application (which Avdyli interpreted as an "exchange" to get her to go out with him); and once touching her knee while sitting next to her at a table in a small cubicle.
Avdyli also testified that she felt uncomfortable every time Augustin passed her desk or looked at her and that he openly stared at her body, specifically her breasts. Shortly after Augustin began commenting on her looks, he called her on her cell phone and asked her on a date, which invitation Avdyli declined. After Avdyli turned down Augustin's requests for a date, he passed by her desk, stared at her, and gave her "dirty looks."
Avdyli did not report Augustin's behavior to the EEO office because she previously had "reported Peter Osborn calling [her] house and making harassing calls . . . [a]nd if [she] brought in another person and reported another person to management, they would think . . . 'My God, what does she think she is, some kind of Miss America or something?'."
The court notes at the outset that the record is not at all clear as to the specifics regarding Avdyli's complaints (i.e., when, where, about whom) and the SSA's response to these complaints. For example, the parties agree that Avdyli's seat was changed on several occasions as a result of her complaints of alleged harassment by Osborn, among others. However, the parties rarely, if ever, use specific dates so determining whether seat assignment changes described by the SSA are the same as those discussed by Avdyli is virtually impossible. The court has tried to the best of its abilities to create an accurate summary of Avdyli's complaints and the SSA's response to these complaints from the parties' combined statements of fact and the underlying record.
This observation leads to the second problem encountered by the court in addressing the claims against Osborn--foundation for the alleged harassment. Based on the parties' statements of fact, it appears that the following several different acts or types of conduct comprise the sexual harassment claim against Osborn:
1) an obscene phone call allegedly made by Osborn to Avdyli's home;
2) an inquiry by Osborn at some point in 1996 or 1997 as to whether Avdyli had a boyfriend and a request for a date;
3) on one occasion after September 11, 2001, Osborn placing a towel on his head and laughing with his co-workers, which Avdyli believed to be directed at her;
4) numerous instances of Osborn walking by Avdyli's workstation unnecessarily which sometimes included glaring at her and recruiting others to walk by her desk and stomp their feet; and
5) Avdyli hearing Osborn say to others in the office that "she's a tease" and "she doesn't like blacks."
To defeat a motion for summary judgment, the nonmoving party must produce "evidence of evidentiary quality." Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). Evidence satisfies this standard if it would be admissible at trial. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). For example, a proper foundation for a conversation must include information as to when and where the conversation occurred, who was present, and who said what to whom. See, e.g., Houk v. Village of Oak Lawn, No. 86 C 139, 1987 WL 7498 *2 (N.D.Ill. Feb.26, 1987)(citing Mauet, Fundamentals of Trial Techniques 123 (1980)). Because the court has concerns about the foundation set forth for the various pieces of evidence relating to Osborn's purported sexual harassment, it will address the foundational basis for the facts related to each of the above allegations as it describes them in more detail.
Obscene phone call. Avdyli claims that she received an obscene phone call at home from a person who identified himself as "Peter from work" sometime between 1996 and 1999. Avdyli did not recognize her caller's voice as being Peter Osborn. However, Avdyli believes that the caller was Peter Osborn because the caller said "[t]his is Peter from work" and she only knows one Peter at work. According to Avdyli, the caller said "I want to f--k you. I want to f--k you in the ass." Avdyli does not know how he got her phone number but believes he may have gotten it from work. Osborn, as already noted, was not one of the supervisors; he, like Avdyli, was a teleservice agent.
The day after she received the phone call, Avdyli reported it to one of the supervisors, Jackie Tackett, who told Avdyli that she would report the incident to one of the managers.*fn2 The manager called Osborn into the manager's officer and asked him whether he had made the phone call. Osborn said he had not.
As to the obscene phone call, Avdyli provides specifics as to what was said, where she was when she received the phone call, and whom she believes was the caller. However, as with much of the other evidence in the record, the evidence as to when this obscene phone call occurred is quite vague. Avdyli states in her additional statement of fact that the call occurred in 1996 or 1997 (Additional SOF at ¶¶ 4, 35), but during her deposition, when asked when the phone call occurred, she said "I don't recall. Its documented." Later in her deposition, Avdyli states that she does not know when the call occurred but that she told Richard Farbach, a supervisor, about the call in 1998 or 1999 "right before he retired." Avdyli Dep. at 40. To add to the confusion, Avdyli admits the statement of fact by the SSA that she received the phone call in 1998 or 1999. Ultimately, the court has no basis upon which it can definitively identify even the year in which the call occurred. All the court can state based on the evidence is that the alleged call occurred sometime between 1996 and 1999.
However, because Avdyli has provided specifics as to what was said and where she was when she received the call and the fact that she states that she received it on a Sunday, and Osborn testified that he was called into a supervisor or manager's office about the phone call "at least about five or six years ago" from the date of his deposition, March 2006 (which call he denied making), the court finds the foundation sufficient to consider the alleged phone call on summary judgment.
In her affidavit, Avdyli attests that only one to two days after receiving the phone call, she reported the phone call to her manager, Richard Farbach, and that his response was to tell her she was not being sexually harassed and "not to worry about it."*fn3
According to Avdyli's affidavit, after she complained about the call, her seat was moved away from Osborn, but less than a month later, Osborn was moved about three seats from Avdyli and despite Avdyli's complaints, the SSA kept her seated in the same seat near Osborn until 2003. The SSA denies these assertions saying no evidence supports them and no evidence shows that Avdyli complained to management about Osborn's alleged harassment before 2003. In support, the SSA points to an October 2003 memorandum from Diamond to Avdyli, attached to Avdyli's statement of facts as Exhibit 7, in which Diamond states that Avdyli refused to identify the employees that Avdyli claims were harassing her. The court acknowledges that while one part of the letter indicates that Avdyli failed to name the alleged harassers, in a later section of the letter, Diamond states that "[e]ven though you have not specifically named the individuals in your October 7, 2003, statement, I am assuming that the persons we had previously discussed are the individuals who had allegedly harassed you." (emphasis added). Diamond then states that she would hold fact-finding interviews with the two individuals and take appropriate action if necessary. Thus, the record evidence supports the contention that Avdyli reported harassment earlier than 2003. Ultimately, given this evidence plus the fact that the SSA admits that Avdyli's seat was moved on at least three occasions, without providing additional details regarding the exact dates of these moves, the court cannot conclude that Avdyli's affidavit testimony on this topic is unsupported.
Request by Osborn for a date. Avdyli asserts that Osborn tagged along with her to lunch one day in "probably '96 [or] '97", asked her if she had a boyfriend and if she would date him. According to Avdyli, she told Osborn that she had a boyfriend and denied his request for a date, and they walked back to the office with their lunches. During his deposition, Osborn admitted going to get lunch with Avdyli on a few occasions but denied ever asking her out. The SSA admitted this statement of fact by Avdyli for purposes of the motion. The court finds that Avdyli has provided sufficient foundation such that the court may consider it for purposes of this motion.
Towel-on-head incident. Avdyli also claims that she was sexually harassed and discriminated against based on her religion when, on some unknown date after September 11, 2001, Avdyli saw Osborn wear a towel on his head for approximately 30 minutes. He was walking up and down the aisle with the towel on his head, and although she did not hear what Osborn was saying, she believes he was making fun of Muslims because approximately four other employees were laughing about it. Avdyli said that she told her supervisor, Yuella Sharp, about the incident, but that Sharp did nothing. Avdyli then told someone either named Carrie Hughes or Carrie Woods, a woman in between a supervisor and a manager, and 20 minutes later Osborn removed the towel. Osborn was never addressed by management for wearing a towel on his head. The SSA admits this statement of fact for purposes of this motion. Accordingly, the court finds sufficient foundation for this evidence such that it can be considered for purposes of this motion.
Walking by Avdyli and glaring. According to Avdyli, Osborn sexually harassed her on a continuous basis by walking along the aisle next to her desk and staring at her. Avdyli complained several times to Jackie Diamond, a manager in the teleservice unit, that Osborn was walking past her desk and looking at her. Osborn testified that he had been called into the manager's office several times over the past five to seven years because of complaints by Avdyli that she was disturbed by the fact that he was walking past her workstation. According to Osborn, in order to do his job he had to walk by some of the spots that Avdyli sat in over the years but not all of the spots.
In an effort to make Avdyli more comfortable, Diamond moved Avdyli to another workstation, so that Avdyli and Osborn would be in different rows--a "couple of cubicles away." Osborn continued to walk around Avdyli's area. One of the managers told Osborn that Avdyli still was disturbed by Osborn's presence, and asked Osborn to try not to walk around her area. Osborn testified that after this warning, he stopped walking by Avdyli's desk. Avdyli, however, denies this and points to an affidavit she filed which states that she "continually complained" to her supervisors that Cisneros, Rivera, and Osborn were intentionally walking past her cubicle for no reason and that she was intimidated. Moreover, Avdyli attests in the affidavit that although she was moved at least three times, Osborn would "always find reasons to walk by [her] cubicle."
Indeed, the SSA admits that "Osborn continued to walk by Plaintiff's work area, even after Plaintiff's seat was removed."
Diamond later moved Avdyli's workstation again so that she was sitting next to the administrative area. When Osborn was promoted in November 2004, he was moved to a different floor in the same building. After he had moved, Osborn appeared on January 28, 2005, at the teleservice center, walked past ...