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Equal Employment Opportunity Commission v. Caterpillar Inc.

August 9, 2007

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
v.
CATERPILLAR INC., DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

On February 2, 2002, Karon Lambert filed a charge of discrimination against her employer, Caterpillar Inc. ("Defendant"), with the Equal Employment Opportunity Commission ("EEOC" or "Plaintiff"). At that time, Lambert was employed at Defendant's facility in Aurora, Illinois. This action arises out of the EEOC's subsequent investigation into sexual harassment allegedly occurring at that facility. The EEOC brings sexual harassment claims on behalf of five current Caterpillar employees-Virginia Early, Sandy Irvin, Lillie Johnson, Wendy Hollenback-Smithburg, and Roxanne Tucker-and sexual harassment and retaliation claims on behalf of two former Caterpillar employees-Karon Lambert and Diana Gomez.*fn1 Defendant now moves for partial summary judgment. Defendant seeks summary judgment on all claims brought on behalf of Early, Gomez, Irvin, Johnson, Hollenback-Smithburg, and Tucker. Defendant does not now seek summary judgment on the sexual harassment and retaliation claims that Plaintiff brings on Lambert's behalf, but it does seek summary judgment on any claim for punitive damages in favor of Lambert. As explained here, Defendant's motion for summary judgment is granted in part and denied in part.

BACKGROUND*fn2

1. Defendant's Aurora Facility & Workforce

All of the events giving rise to this action took place at Defendant's facility in Aurora, Illinois, which is devoted primarily to manufacturing and assembling large earth-moving equipment. (Def. LR 56.1 Stmt. ¶ 6.) The Aurora facility is composed of four main buildings and occupies almost 400 acres.(Id. ¶ 7.) Approximately one-third of the employees at the Aurora facility are salaried and work in clerical, technical, professional, and managerial positions. (Id. ¶ 8.) The remaining employees are hourly workers who are engaged in various aspects of the manufacturing process. (Id.) These hourly employees are represented by the United Auto Workers, Local 145 (the "union" or the "UAW") and, under the terms of the collective bargaining agreement between Caterpillar and the union, these workers fall into two classes-full-time and supplemental. (Id. ¶ 10.) Full-time workers are regular, non-temporary employees who are subject to all of the benefits and obligations of the labor agreement; they are covered by a progressive discipline policy and can only be fired for just cause. (Id. ¶ 11.) Supplemental employees are hired to work on a temporary, though sometimes indefinite, basis. (Id. ¶ 12.) Unlike full-time employees, supplemental employees can be fired at any time for any reason, have limited grievance rights under the labor agreement, and are not protected by provisions of the labor agreement that require Caterpillar to engage in progressive discipline. (Id. ¶ 13.)

2. Defendant's Sexual Harassment Policies & Training

Because it is relevant to Caterpillar's affirmative defense, and to Plaintiff's claim for punitive damages, the parties have devoted considerable attention to Caterpillar's practices and policies concerning workplace harassment. From at least 1996 to 2000, Caterpillar maintained and published a policy that prohibited sexual harassment. (Id. ¶ 14.) The policy in place between 1998 and 2000 provide that an employee who believes that he or she has been sexually harassed should report the conduct to one of four people: (1) his or her supervisor, (2) his or her manager, (3) the labor relations and personnel service manager, or (4) the corporate EEO coordinator. (Id. ¶ 15; Aurora Facility's Sexual Harassment Policies from 1998-2000, Ex. C. to Def. LR 56.1 Stmt.)*fn3 Since 2000, Caterpillar has maintained and published a "prohibited harassment" policy that expanded upon its earlier policy to prohibit all forms of harassment, including sexual harassment.(Def. LR 56.1 Stmt. ¶ 16; Aurora Facility's Prohibited Harassment Policies from 2000 to present, Ex. D to Def. LR 56.1 Stmt.) Similarly to the earlier policy, the policy issued in 2004 instructs workers who believe they have been harassed to notify either the area supervisor, the department manager, the human resources manager, or the corporate EEO manager. (Def. LR 56.1 Stmt. ¶ 18.) In addition to those individuals, the 2005 and 2006 policies provide that employees can report harassment to local human resources staff, as well. (Id. ¶ 19.) Caterpillar's sexual harassment and prohibited harassment policies state that Caterpillar will not tolerate retaliation against an employee who reports or participates in an investigation of sexual harassment. (Id. ¶ 21.) The policies also explain that an employee who believes he or she has been harassed may file a charge with the Illinois Department of Human Rights or the Illinois Human Rights Commission; the 2005 and 2006 policies tell employees of their right to file a charge with the EEOC. (Id. ¶ 20.)

Since at least 1996, Caterpillar had established procedures for processing employee complaints regarding equal employment matters. (Id. ¶ 22; Complaint Procedure, Ex. E to Def. LR 56.1 Stmt.) Also since 1996, Caterpillar has maintained an equal employment opportunity ("EEO") policy announcing that the Aurora facility is to be a harassment-free work environment. (Def. LR 56.1 Stmt. ¶ 23; Aurora Facility EEO Policy Statement, Ex. F to Def. LR 56.1 Stmt.) These harassment policies, as well as government-required anti-discrimination posters, have been posted in at least one spot of high visibility in every major building at the Aurora facility since 1996; they have also been posted in locked glass display cases at major facility entrances, at least one of which all employees pass when they walk into work. (Def. LR 56.1 Stmt. ¶¶ 25-27.)

In addition to the posters, Caterpillar communicated with its employees by way of printed publications. In 1996, Caterpillar published a booklet for employees called What You Should Know About Sexual Harassment in the Workplace, which reprints Caterpillar's sexual harassment policy and provides guidance to employees on how to recognize and handle sexual harassment and the consequences of such harassment. (Id. ¶ 28; What You Should Know About Sexual Harassment in the Workplace, Ex. G to LR 56.1 Stmt.) From 1996 to 2000, this booklet was distributed to each new employee during his or her orientation. (Def. LR 56.1 Stmt. ¶ 40.) It provides that when an employee discloses information concerning an incident of harassment, supervisors are to immediately report the incident to their facility EEO coordinator or local human resources manager. (Pl. LR 56.1 Stmt. ¶ 23.) That same year, Caterpillar published another booklet for employees, Working at Caterpillar, which contains its EEO policy and warns employees that failure to comply with the company's policies and procedures, including the sexual harassment policy, may lead to disciplinary action. (Def. LR 56.1 Stmt. ¶ 29; Working at Caterpillar, Ex. H. to Def. LR 56.1 Stmt.) A revised booklet, What You Should Know About Caterpillar's Prohibited Harassment Policy, was distributed to employees in 2001; this booklet discusses Caterpillar's policies against sexual harassment and retaliation in depth. (Def. LR 56.1 Stmt. ¶¶ 30-31; What You Should Know About Caterpillar's Prohibited Harassment Policy, Ex. I to Def. LR 56.1 Stmt.) From 2001 to the present, this booklet was also distributed to each new employee during orientation. (Def. LR 56.1 Stmt. ¶ 40.) Caterpillar also distributes its Code of Worldwide Business Conduct, which affirms that the company obeys laws prohibiting discrimination, that Caterpillar promotes an environment free of intimidation and harassment, and that its employees have a responsibility to report harassment and will not be subject to retaliation for doing so. (Id. ¶¶ 32-38; 2000 Code of Worldwide Business Conduct, Ex. J to Def. LR 56.1 Stmt.; 2005 Caterpillar Worldwide Code of Conduct, Ex. K to Def. LR 56.1 Stmt.)

Caterpillar has conducted a number of training sessions for its employees that included training on sexual harassment. Among the training sessions that Caterpillar has conducted at its Aurora facility are the following:

* Since 1996, all new employees at the Aurora facility attend an orientation program on their first day. (Def. LR 56.1 Stmt. ¶ 39.) At this orientation, Caterpillar's harassment policies are reviewed with the attendees and the new employees are informed that these policies are posted throughout the facility. (Id. ¶ 41.)

* Since 1996, employees have been required to attend another week-long training program three months into their employment. A portion of that training program is devoted to harassment training. (Id. ¶¶ 43-44.)

* The facility has conducted a new supervisor orientation since 1996 for newly-hired or promoted supervisors; at this orientation, Caterpillar reviews its harassment policies and explains to the supervisors their role with respect to complaints of harassment. (Id. ¶¶ 45-47.)

* In March 1996, all salaried and management employees at the Aurora facility were required to attend a diversity training called "Synergy From Others," which included a discussion on behaviors that can give rise to complaints of sexual harassment.(Id. ¶ 48.) This training was repeated for hourly employees in March of 1997. (Id. ¶ 52.)

* In November 1996, all of the supervisory and management employees at the Aurora facility were required to attend a two-hour sexual harassment training course titled "Maintaining A Harassment-Free Work Environment." (Id. ¶¶ 49-50.)Attendees were given the What You Should Know About Sexual Harassment in the Workplace booklet. (Id. ¶ 50.)

* In January 1998, all salaried and management employees at the Aurora facility were required to attend an eight-hour diversity training, which included sexual harassment training. (Id. ¶ 53.)

* Bill Miller, the labor relations representative, conducted an updated sexual harassment training for managers in certain buildings at the Aurora facility in October 1999. (Id. ¶ 54.)

* In early 2000, hourly employees at the Aurora facility were required to attend a training course called the "Diversity Diner," which covered the need to be sensitive to diversity, including gender differences, in the workplace. (Id. ¶ 55.)

* Supervisors at the Aurora facility were required to attend a training course titled "What the Supervisor Needs to Know About Sexual Harassment" in March 2000, which covered Caterpillar's policies and procedures, what behaviors constitute sexual harassment, and how supervisors should respond to complaints of harassment. (Id. ¶ 56.)

* In 2001, management employees at the Aurora facility took part in a training program called "Valuing People" that covered diversity issues, including gender differences, in the workplace. (Id. ¶ 57.)

* An all-employee meeting was held at the Aurora facility in 2002 at which time the employees saw a video on prohibited harassment in the workplace and discussed Caterpillar's prohibited harassment policy. (Id. ¶ 58.)*fn4

* In 2003-2004, Caterpillar held a facility-wide prohibited harassment training, which covered its prohibited harassment policy and policy of non-retaliation. (Id. ¶ 59.) During the course, Caterpillar reissued its What You Should Know About Sexual Harassment in the Workplace booklet. (Id.)*fn5

* In 2005, another all-employee training was held at the Aurora facility on the Caterpillar Code of Conduct, which includes a commitment to a harassment-free environment. (Id. ¶ 60.)*fn6 In addition to conducting training sessions, the Aurora facility's security department conducts "sweeps" to identify and remove any inappropriate materials. (Id. ¶ 61.) These sweeps occur not less than every eight weeks and more often if requested by the labor relations or operations departments. (Id.)*fn7

3. Alleged Sexual Harassment of Current and Former Caterpillar Employees

The parties have set forth extensive facts related to the alleged harassment of Virginia Early, Diana Gomez, Sandy Irvin, Lilly Johnson, Wendy Hollenback-Smithburg, and Roxanne Tucker. The court presents the relevant facts concerning each of these individuals within the text of the opinion that follows.

DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125 (7th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The moving party has the initial burden to show that the evidence is insufficient to establish a material element of the non-moving party's case. Celotex Corp., 477 U.S. at 322-23. If the moving party meets this burden, the non-moving party must then "come forward with specific facts showing there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the evidence supporting the non-moving party's claim is insufficient for a reasonable jury to return a verdict in its favor, the court will grant summary judgment. Id.

B. Title VII Claims for Hostile Work Environment Sexual Harassment

Title VII prohibits an employer from discriminating "against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ." 42 U.S.C. § 2000e-2(a)(1). It is implicit in this provision that an employer may be liable "if an employee's work environment is discriminatorily hostile or abusive." Phelan v. Cook County, 463 F.3d 773, 782-83 (7th Cir. 2006) (citing Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006)). To establish a prima facie case of hostile work environment sexual harassment, an employee must establish that:

(1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on her sex; (3) the sexual harassment had the effect of unreasonably interfering with her work performance in creating an intimidating, hostile, or offensive working environment that seriously affected her psychological well-being; and (4) a basis for employer liability exists.

Phelan, 463 F.3d at 783 (citation omitted). Sexual harassment is actionable under Title VII if it is "'both subjectively and objectively so severe or pervasive'" that it alters the conditions of the plaintiff's employment and creates an abusive work environment. Whittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005) (quoting Wyniger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir.2004)). Both the victim and a reasonable person must perceive the environment as "hostile or abusive." Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). In determining whether a workplace is objectively hostile, the court considers the totality of the circumstances, including: the frequency and severity of the discriminatory conduct; "'whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" See Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).

Employers are strictly liable for harassment by a supervisor. Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 505 (7th Cir. 2004) (citation omitted). A supervisor is "someone with the power to directly affect the terms and conditions" of the allegedly harassed individual's employment; the court does not consider an employee who merely has the "authority to oversee aspects of another employee's job performance" to be a supervisor for Title VII purposes. Id. at 506 (citation omitted). If the harassed employee did not suffer a "tangible employment action," such as a discharge, demotion, or undesirable reassignment, the employer may assert the Ellerth/Faragher affirmative defense to avoid liability. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher, 524 U.S. at 807; Phelan, 463 F.3d at 783 (citing Faragher, 524 U.S. at 807). To succeed on this affirmative defense, the employer must establish that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and that the "employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Phelan, 463 F.3d at 783 (citing Faragher, 524 U.S. at 807). No affirmative defense is available, however, if the employee suffered a "tangible employment action" as a part of the alleged harassment. Faragher, 524 U.S. at 808 (citing Ellerth, 524 U.S. at 762-63); Phelan, 463 F.3d at 784-85.

If the individual responsible for the harassment is another employee but not a supervisor, the employer is liable if it was negligent in discovering or remedying the harassment. Rhodes, 359 F.3d at 506. In other words, an employer is liable for harassment by a co-worker if the employer "'knew or should have known' about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice." Wyninger, 361 F.3d at 976 (quoting Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001)).

In its motion for summary judgment, Defendant argues that the record does not establish that the terms and conditions under which Early, Irvin, Johnson, Hollenback-Smithburg, Tucker, or Gomezworked were substantially altered by severe or pervasive sex-based harassment, or that Gomez's 2004 dismissal was in retaliation for any protected conduct. (Def. Mem. at 2.)Moreover, Defendant argues, there is no dispute that it acted "reasonably and promptlyto correct inappropriate conduct that violated its widely publicized prohibited harassment policies when complaints were raised." (Id. at 2-3.) Plaintiff contends that questions of fact exist as to whether these six employees were subject to a sexually hostile work environment and whether Defendant terminated Gomez in retaliation for complaining about harassment. (Plaintiff's Memorandum of Law in Opposition to Defendant's Second Motion for Partial Summary Judgment ("Pl. Response") at 1.) The court considers Plaintiff's claims on behalf of Early, Irvin, Johnson, Hollenback-Smithburg, Tucker, and Gomezin turn.

1. Virginia Early

a. Factual Background

Virginia Early began working for Caterpillar in January 1994 as a "fabrication specialist"; she was initially assigned to work the second shift. (Def. LR 56.1 Stmt. ¶ 62.)*fn8 During her employment with Caterpillar, Early has always worked in Building G, with the exception of a few occasions on which she was assigned to work elsewhere. (Id.) In July 2001, Early was transferred to the third shift. (Id. ¶ 64.) She remained on the third shift for eighteen to twenty-four months and then transferred to the first shift because she wanted to work during the day. (Id. ¶ 65.)Today, Early remains employed as a fabrication specialist on the first shift. (Id. ¶ 66.) At the time of the alleged incidents of sexual harassment, Early was working on the second shift in Building G. (Id. ¶ 71.)

It is undisputed that Early understood, prior to 2000, that Caterpillar had a policy prohibiting harassment in the workplace. Early recalls having received a document discussing Caterpillar's sexual harassment policy at some point, has viewed copies of the prohibited harassment policy on bulletin boards at the Aurora facility, and recalls attending training on the harassment policy and receiving a list of names and telephone numbers of persons in the labor relations department whom she could call to complain of harassment. (Id. ¶¶ 67-70; Pl. LR 56.1 Stmt. ¶ 1.)

Early claims to have been harassed by a security guard in July 2001; she does not know the name of the security guard, though she remembers that he spoke with an accent. (Def. LR 56.1 Stmt. ¶ 72.) Early recalls that the guard moved in various parts of the plant and was not permanently located in the area where she worked. (Id.) According to Early, the guard made comments to her of a sexual nature on multiple dates between July 19, 2001 and July 25, 2001:

* On July 19, 2001, the guard asked Early to sleep with him. (Id. ¶ 74.) Early felt fearful as a result of this encounter and left her station to tell "Bruce," a co-worker, though not a supervisor, that the guard was bothering her. (Pl. LR 56.1 Stmt. ¶ 3.)

* On July 21, 2001, the guard asked Early for sex three times. (Def. LR 56.1 Stmt. ¶ 75.) While the guard was at her work station, her supervisor, George Dutton, also came to her work station for an unrelated reason. (Id.) Early did not inform Dutton of the guard's conduct. (Id. ¶ 76.)

* On July 23, 2001, the security guard again asked Early for sex and came to her work area three times before lunch. (Id. ¶ 77.) During one of her conversations with the guard, he told her that in Romania, where he is from, he could rape her and nothing would be done about it. (Id. ¶ 78.)

* On July 25, 2001, Early told the guard not to talk to her and warned him that he might get in trouble for sexual harassment. (Id. ¶ 79.)

In total, according to Early, the guard asked her to have sex with him seven times and he also told her "what his wife did not do for him." (Pl. LR 56.1 Stmt. ¶ 2; Deposition of Virginia Early at 23, Ex. U to Def. LR 56.1 Stmt.) Early had no conversations with the guard after July 25, 2001. (Def. LR 56.1 Stmt. ¶ 73.) Other than the conversations with this particular guard, Early admits that no one at Caterpillar has ever harassed her. (Id. ¶ 80.)

Early testified that she told two of her co-workers, Bruce and Jimmy Ray, that the security guard was "bothering" her. She also called the labor relations department and reported the guard's comments to someone who identified himself as "Doug"; Early cannot recall when, exactly, she made this phone call. (Id. ¶ 81; Pl. LR 56.1 Stmt. ¶¶ 4-5; Early Dep. at 27.) Doug Howell, who worked as a labor relations assistant at the time, recalls having once received a complaint from Early, though he did not recall its substance. (Pl. LR 56.1 Stmt. ¶¶ 9-10; Def. LR 56.1 Resp. ¶ 10; Declaration of Doug Howell ¶ 1, Ex. HH to Def. LR 56.1 Stmt.; Deposition of Doug Howell at 142-43, Ex. X to Def. LR 56.1 Stmt.) Early testified that she told Doug that she did not feel safe on her shift, that the security guard was soliciting sex from her, and that he told her if he was in Romania he could rape her and nothing would be done about it. (Pl. LR 56.1 Stmt. ¶ 6.)*fn9 Doug asked Early whether she was intimate with the security guard and told her that someone would come out to talk to her about the incident. (Id. ¶ 7.)*fn10 Howell recalls taking notes of Early's complaint but does not remembering doing anything else in response to her complaint. (Id. ¶ 11.)*fn11 It is undisputed that after Early reported the comments by the security guard, she was never approached by him or harassed again. (Def. LR 56.1 Stmt. ¶ 83.) Although Early could not remember when she reported the security guard's comments by calling the labor relations department, (Early Dep. at 27), the court concludes that she must have called on or after July 25, 2001, the last day Early spoke to the guard, given the parties' agreement that Early was never approached by the guard after she reported his conduct.

On July 25, 2001, Early received a visit from Doug Holman, a department superintendent, who asked her about the previous request she had made to be moved to the third shift. (Id. ¶ 82.) Early told Holman that she wanted to transfer to the third shift due to issues with her children and gave no other reason; her request was granted shortly thereafter. (Id.; Pl. LR 56.1 Stmt. ¶ 13.) After her transfer to the third shift, Early saw the troublesome security guard on one occasion but they did not speak. (Pl. LR 56.1 Stmt. ¶ 14; Early Dep. at 31-32.) In any event, Early testified, she did not feel safe even after her transfer to the third shift, and, based on her experience, she did not believe that Caterpillar took its prohibited harassment policy seriously. (Pl. LR 56.1 Stmt. ¶¶ 15-16.)

In December 2001, Early filed a charge of discrimination with the EEOC, alleging race and disability discrimination. (Def. LR 56.1 Stmt. ¶ 84.) In this charge, Early claimed that she was discriminated against on the basis of her race and an unspecified disability when she was given a below average performance evaluation, her work was scrutinized by management, and her "White Foreman" subjected her to "teasing and harassment on the basis of [her] disability." (12/20/01 Virginia Early EEOC Charge, Ex. U to Def. LR 56.1 Stmt.) Early did not mention sexual harassment or anything related to her July 2001 conversations with the security guard in that charge. (Def. LR 56.1 Stmt. ¶ 84.)

b. Sexual Harassment Claim

Defendant argues that it is entitled to summary judgment on Plaintiff's sexual harassment claim on Early's behalf because there is no evidence that Early was subject to a severe or pervasive hostile work environment or that Defendant was negligent in failing to prevent or remedy any alleged harassment. (Def. Mem. at 9-10.) Plaintiff disagrees and contends that the undisputed evidence raises triable issues as to the existence of a sexually hostile work environment and the appropriateness of Defendant's response. (Pl.Response at 5-8.) The court agrees with Plaintiff.

To establish this claim, Plaintiff must show that the alleged harassment was subjectively and objectively severe or pervasive. See Whittaker, 424 F.3d at 645. Defendant argues that Plaintiff cannot establish the subjective component of Early's claim. (Defendant's Reply in Support of Its Second Motion for Partial Summary Judgment ("Def. Reply") at 8.) Defendant notes that Early did not mention any sexual harassment in her December 2001 EEOC charge of race and disability discrimination, filed less than five months after the security guard's comments to her. (Def. LR 56.1 Stmt. ¶ 84.) Because Defendant raises this argument for the first time in its reply brief, the court need not consider it here. See United States v. Adamson, 441 F.3d 513, 521 (7th Cir. 2006) (citing United States v. Blaylock, 413 F.3d 616, 619 (7th Cir. 2005)) (arguments raised for first time in reply brief are waived). In any case, Early testified that she was scared by the security guard's comments, that she did not feel safe, and that she was bothered enough by the guard's comments that she alerted two co-workers and the labor relations department. (Def. LR 56.1 Stmt. ¶ 81; Pl. LR 56.1 Stmt. ¶¶ 3-5.) Viewing this evidence in the light most favorable to Plaintiff, the court is satisfied that Early found her work environment to be hostile.

In assessing whether Early's work environment was objectively hostile, the court considers the totality of the circumstances, including the frequency and severity of the discriminatory conduct; whether it was physically threatening or humiliating, or merely consisted of offensive utterances; and whether it unreasonably interfered with Early's work performance. See Faragher, 524 U.S. at 787-88 (citing Harris, 510 U.S. at 23). The offensive conduct at issue here was arguably infrequent: Early's career at Caterpillar began in 1994 and she only claims to have suffered from sexual harassment between July 19, 2001 and July 25, 2001. The severity of the harassment presents a closer issue, however. In evaluating severity, the Seventh Circuit has explained that on one side are sexual assaults, other physical contact for which there is no consent, uninvited sexual solicitations, intimidating words or acts, obscene language or gestures, and pornographic pictures; on the other side lies conduct that generally does not create a hostile work environment, such as "the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers." Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006) (citing Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995)). It is undisputed that the security guard asked Early to have sex with him seven times within a six-day time period, told her on one occasion "what his wife did not do for him," and told her on another occasion that in his homeland of Romania, he could rape her without any consequences. (Pl. LR 56.1 Stmt. ¶ 2; Def. LR 56.1 Stmt. ¶ 78.)

That the guard repeatedly and directly solicited Early for sex is troubling. In Quantock v. Shared Marketing Services, Inc., the Seventh Circuit viewed an employee's outright solicitation for numerous sex acts, which were made directly to the plaintiff, as more severe than "occasional vulgar banter tinged with sexual innuendo." 312 F.3d 899, 904 (7th Cir. 2002). The court held that a reasonable jury could find these sexual propositions sufficiently severe as to have created a hostile work environment. Id. The circumstances here are not identical: the harassing employee in Quantock worked in close quarters with plaintiff and held a significant position of authority over her; but the harassing employee in this case, the security guard, threatened Early in addition to propositioning her for sex. Construing all facts in Plaintiff's favor, as this court must, the court views the guard's statement to Early that, in Romania, he could rape her without any repercussions as a threatening and intimidating statement. Viewing this verbal harassment and the guard's numerous solicitations of Early for sex in the light most favorable to Plaintiff, the court concludes a jury could find the guard's conduct sufficiently severe so as to have created a hostile work environment.

Because Early did not suffer a tangible employment action, Defendant asserts the Ellerth/Faragher affirmative defense, arguing that it "exercised reasonable care to prevent and correct promptly any sexually harassing behavior," and that Early "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Phelan, 463 F.3d at 783 (citing Faragher, 524 U.S. at 807). Defendant urges that Plaintiff cannot establish that it acted negligently because Early did not tell her supervisor about the security guard's conduct and had no compelling reason for failing to report the conduct. (Def. Mem at 9-10.) It is undisputed, however, that Early did reported the security guard's conduct to Defendant's labor relations department. Plaintiff argues that Defendant was negligent in failing to investigate that complaint or to take any corrective action, and urges that Defendant cannot escape liability simply because the security guard's harassment of Early ceased fortuitously. (Pl. Response at 7-9.)

The court first concludes that Defendant knew or should have known about the security guard's conduct towards Early. See Wyninger, 361 F.3d at 976 (quoting Berry, 260 F.3d at 811) (employer is liable for harassment by a co-worker if the employer "'knew or should have known' about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice"). As noted, it is undisputed that Early reported the security guard's conduct to Doug Howell, a labor relations assistant. (Def. LR 56.1 Stmt. ¶ 81; Pl. LR 56.1 Stmt. ¶¶ 4-5, 9-10.) In this complaint, Early specifically told Doug that she did not feel safe, that the guard was soliciting sex from her, and that the guard had told Early that if he was in Romania he could rape her without consequence. (Pl. LR 56.1 Stmt. ¶ 6.) Early's failure to report the alleged harassment to her supervisor therefore does not defeat her claim; Defendant does not dispute Early's testimony that at a training session on Defendant's sexual harassment policy, she was given a list of names and telephone numbers she could call to report harassment, which included employees in the labor relations department. (Id. ¶ 1.) Defendant itself thus conveyed to Early that calling the labor relations department was an appropriate means of reporting sexual harassment.

The only question that remains, then, is whether Defendant took reasonable steps once it was on notice of Early's complaint. See Wyninger, 361 F.3d at 976 (quoting Berry, 260 F.3d at 811). In making this assessment, the court considers whether Defendant's response was reasonably calculated to prevent further harassment based on the facts and circumstances at the time Early complained of the guard's conduct. See Longstreet v. Ill. Dep't of Corr., 276 F.3d 379, 382 (7th Cir. 2002) (citations omitted); see also Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999) (court must determine if employer's response "was a reasonable one, designed to remedy the illegal harassment, or a negligent one that did not adequately respond to the situation in its midst.") What is a reasonable response depends, in large part, on the gravity of the harassment. Longstreet, 276 F.3d at 382 (citing Baskerville, 50 F.3d 428).

Howell recalls taking notes of Early's complaint but does not recall doing anything else in response to her complaint. (Pl. LR 56.1 Stmt. ¶ 11.) It is true that on July 25, 2001, the last day the security guard spoke to Early, she talked with her supervisor, Doug Holman, about transferring shifts and she was in fact transferred to a different shift shortly thereafter. (Def. LR 56.1 Stmt. ¶ 82; Pl. LR 56.1 Stmt. ¶ 13.) Defendant does not, however, contend that this transfer had anything to do with Early's complaint about the security guard's conduct. Indeed, it is undisputed that Early did not tell Holman about the security guard's conduct and that Early had previously put in a request to transfer shifts for family-related reasons. (Def. LR 56.1 Stmt. ¶ 82; Pl. LR 56.1 Stmt. ¶ 13.) The parties do not address whether, when Howell received Early's complaint, he was aware that Early would be transferred to another shift so that her contact with the security guard would be limited. This question bears heavily on whether Defendant responded appropriately to Early's complaint as, if Howell did not have any knowledge that Early might be transferred, Defendant effectively did nothing in response to Early's complaint. Under these circumstances, the fact that the harassing conduct did not recur does not require the conclusion that the employer's response was adequate. Loughman v. Malnati Org. Inc., 395 F.3d 404, 407 (7th Cir. 2005) (citing Smith, 189 F.3d at 535). If "a jury deems [the employer's] response to have fallen below the level of due care," an employer may still be liable even if the alleged harassment fortuitously ceased. Smith,189 F.3d at 535. Defendant's motion for summary judgment on Early's sexual harassment claim is denied.

2. Diana Gomez

a. Factual Background

Caterpillar hired Diana Gomez as a "supplemental materials handler" in June 2001, and later transferred her to the position of an "assembler"; as an assembler, she worked in Building H.(Def. LR 56.1 Stmt. ¶ 85.) Gomez was assigned to work on the "990/992" assembly line. (Id. ¶ 86.)In this position, Gomez reported to supervisor Austin Bullington, Bullington reported to Roger Meyer, and Meyer reported to Dan Mikelson, the Production Manager; General Foreman Dave Hinton also provided management support for supervisors such as Bullington. (Id. ¶ 87.)

Gomez admits that she received sexual harassment training, (id. ¶ 89), but she does not remember whether she received a copy of Caterpillar's prohibited harassment policy. (Pl. LR 56.1 Resp. ¶ 89; Pl. LR 56.1 Stmt. ¶ 66; Deposition of Diana Gomez at 45-46, Ex. V to Def. LR 56.1 Stmt.)*fn12 Though she recalls that various policies were displayed on bulletin boards at the Aurora facility, she also does not recall specifically whether the prohibited harassment policy was displayed there. (Pl. LR 56.1 Stmt. ¶ 67.) In any case, Gomez understood that sexual harassment was a violation of Caterpillar's rules and she was aware of Caterpillar's prohibited harassment policy. (Def. LR 56.1 Stmt. ¶ 91.)

Gomez claims to have been sexually harassed from December 2003 to February 2004 by Roberto Flores, who has worked at Caterpillar since 1973, and was working as an assembler on the same line as Gomez as of 2003. (Deposition of Roberto Flores at 9-10, Ex. TT in Def. Supp. Exhibits to LR 56.1 Stmt.)*fn13 As a result of Flores's conduct, described below, Gomez claims that she was uncomfortable at work and unable to do her job. (Def. LR 56.1 Stmt. ¶ 93; Pl. LR 56.1 Stmt. ¶¶ 68, 78.) Flores himself was aware of Caterpillar's prohibited harassment policy from the time he started working at Caterpillar, has seen the policy posted in various places at the plant, and has received updated copies of the policy. (Def. LR 56.1 Stmt. ¶ 95.)*fn14 Flores also testified that he attended a meeting for employees about sexual harassment approximately every two years. (Id. ¶ 96.)

"In roughly 2003, Flores was tasked with training Gomez in a particular work area or 'zone' on the 990/992 line." (Id. ¶ 97.) According to Gomez, during the time Flores worked with her, he made "kissing faces" at her approximately four times and touched her buttocks on two occasions. (Def. LR 56.1 Stmt. ¶ 98; Pl. LR 56.1 Stmt. ¶ 72.) The first time that Flores slapped Gomez's buttocks, she told him to stop and he just laughed. (Pl. LR 56.1 Stmt. ¶ 70.) Flores also told Gomez to "suck [his] dick" two or three times while grabbing himself, and once asked her to "hold it" when he went to the restroom. (Def. LR 56.1 Stmt. ¶ 98; Pl. LR 56.1 Stmt. ¶ 69.)*fn15 When Flores asked Gomez to "hold it," she believed he was telling her to go with him to the bathroom and help him hold his penis; Gomez was not sure whether or not Flores was joking when he said this. (Pl. LR 56.1 Stmt. ¶ 71.)

Gomez had complained to her supervisor, Bullington, from time to time about non-sexual issues she had with Flores. (Def. LR 56.1 Stmt. ΒΆ 99.) And Flores had complained to Bullington about Gomez's work performance, reporting to Bullington that Gomez asked too many questions to which she should already know the answer; Bullington told Gomez and Flores that they needed to learn to work ...


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