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Swisher v. Hinshaw & Culbertson

June 6, 2007


The opinion of the court was delivered by: Joe Billy McDade United States District Judge


Before the Court is Defendant's Motion for Summary Judgment filed on October 17, 2006. [Doc. 11.] Plaintiff filed a Response on November 21, 2006 [Doc. 13] and Defendant filed a Reply on December 5, 2006 [Doc. 16]. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED.


Plaintiff, Pamela Swisher, alleges that she was the victim of employment discrimination while employed in the Peoria office of Defendant, the law firm of Hinshaw & Culbertson.

Plaintiff began her employment with Defendant in 1997 as an office coordinator. (Doc. 13 at ¶ 29.) At that time, she reported to Paul Estes, one of Defendant's capital partners. (Doc. 11 at ¶ 5, Doc. 13 at 3.) The two other capital partners in the Peoria office were Doug Marshall and Dave Jones.

Together, Estes, Marshall and Jones had the most authority in the Peoria office to make employment decisions. (Doc. 13 at ¶ 5.) Although Estes was the managing partner, the impression given by Plaintiff is that Jones was influential because he brought in and serviced State Farm Insurance Company, the firm's largest and most lucrative client. (Doc. 13 at ¶¶ 5-9.)

The focus of Plaintiff's claim is on her relationship with Jones and this Court accepts her view of that relationship as the Court is required to do at this stage of litigation. When Plaintiff first began her employment with Defendant in 1997, Plaintiff and Jones had a professional and mutually supporting relationship and Jones had never disciplined Plaintiff. (Doc. 11 at ¶ 25; Doc. 13 at 3.) Then, in September of 1998, Plaintiff was invited with other office employees on an outing on Jones' sailboat. (Doc. 13 at ¶ 48.) After the outing, when Jones' sailboat returned to the dock on Main Street in Peoria, he excused everyone except Plaintiff because he wanted her help to take the boat back to the marina. (Doc. 13 at ¶ 49.) Because Jones had been trying to get Plaintiff out on his boat for some time Plaintiff viewed this as a pretext to get the two of them alone.

Once they were alone, Jones made sexual advances toward Plaintiff. Specifically, Jones placed his hand on Plaintiff's leg and told her that she had the sexiest voice that he had ever heard. (Doc. 13 at ¶ 50-51.) Plaintiff then attempted to distance herself from Jones. (Doc. 13 at ¶ 50.) However, Jones continued to inquire about who she was dating and grabbed her knee and held it briefly. (Doc. 13 at ¶ 50.) After that, Plaintiff informed Jones that she was in a serious relationship. (Doc. 13 at ¶ 50.) Jones continued to raise personal subjects with Plaintiff and Plaintiff continued to change the subject. When Plaintiff kept changing the topic of conversation, Jones became angry (Doc. 13 at ¶ 52) but made no further advances toward her (Doc. 11 at ¶ 22, Doc. 12 at 4).

According to the Complaint (Doc. 1), once Plaintiff made clear through her actions that she was not interested in a sexual relationship, Jones began to treat her differently. (Doc. 1 at ¶ 10.) That evening after Plaintiff and Jones drove away from the marina, Jones would not speak to Plaintiff. (Doc. 13 at ¶ 53.) From that point until the spring of 1999, (Doc. 11 at Ex. 5 p. 102) Jones' attitude toward her completely changed at work. Specifically, Plaintiff alleges that Jones would openly criticize her in front of other staff members by calling her stupid and inept (Doc. 13 at ¶ 58), at least once he ignored her for weeks (Doc. 13 at ¶ 58; Doc. 16 at p. 6), and he would be rude and intimidating toward individuals that reported directly to Plaintiff. Jones could have a short temper, be aggressive, or have conflicts with other people in the office.

(Plaintiff's Dep. at 98-99; Doc. 13 at 27; Marshall Dep. at 67-70.) However, his conflict with Plaintiff and those who reported to her was more intense than his conflicts with other people in the office. (Marshall Dep. at 67-70.) As an example, Plaintiff notes that on one occasion Jones referred to an African-American and a Hispanic clerk who reported to Plaintiff as "Pam's trained monkeys." (Doc. 13 at ¶ 57.)

Sometime early in 1999, Plaintiff made a sexual harassment complaint against Jones. (Doc. 13 at ¶ 61.) Initially, she went to Estes and then later spoke to Anne Connor over the phone. (Doc. 11 at ¶ 32-33; Doc. 13 at 3.) Connor was the director of human resources for the entire firm and her office was located at the firm's headquarters in Chicago. (Doc. 11 at ¶ 31; Doc. 13 at 3.) Plaintiff described the incident on the boat and resulting treatment by Jones and informed Connor that she wanted Jones' behavior to stop. (Doc. 13 at 64; Doc. 11 at Ex. 5 p. 140-145.)

Immediately after this complaint was made, Jones' treatment toward Plaintiff improved for several months. However, after that period of time, he resumed being openly critical of Plaintiff. (Doc. 13 at ¶ 66.) Specifically, Jones would be critical of Plaintiff at meetings, and at one point Jones allegedly became angry with Plaintiff, threw files in the office and directed Plaintiff to pick up the files. (Doc. 13 at ¶ 67.)

Finally, Plaintiff alleges that she was told by Mark Flannery,*fn1 a non-capital partner, that Jones "wanted to find a reason to fire Plaintiff." (Doc. 13 at ¶ 74.) Flannery allegedly told Plaintiff that Jones was mad at her for complaining to Connor. (Id.) However, Plaintiff does not provide a specific date for this occurrence.

Her complaint in early 1999 was the only complaint Plaintiff ever made regarding Jones and his conduct toward her. In July of 1999, Plaintiff received a pay increase. In 2001, Plaintiff was promoted to office manager and received a second pay increase of approximately $6,000 or fifteen percent of her annual salary. (Doc. 11 at ΒΆ 45-46; Doc. 13 at 3.) Then, in July of 2002, Plaintiff received a ...

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