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Beverly v. Eastern Illinois University

August 27, 2007

HENRY BEVERLY AND MARTINA BEVERLY, PLAINTIFFS,
v.
EASTERN ILLINOIS UNIVERSITY, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

On August 19, 2005, Plaintiffs Henry and Martina Beverly filed their Complaint (#1) in this matter pursuant to Title VII of the Civil Rights Act of 1964 alleging they were subjected to a hostile work environment due to sexual harassment and that Defendant Eastern Illinois University retaliated against them after they complained about the harassment. Plaintiff Henry Beverly further alleges that Defendant discriminated against him on the basis of his race in failing to hire him as an adjunct professor in the school of business. On June 1, 2007, Defendant filed a Motion for Summary Judgment (#50). For the reasons that follow, Defendant's Motion for Summary Judgment is GRANTED.

FACTS

In 2003, Henry and Martina enrolled in the School of Business at Eastern Illinois University (EIU) seeking to earn master's of business administration (MBA) degrees in finance and operational management. While the Beverlys were at EIU, they worked as graduate assistants (GAs), providing research and grading assistance to professors. Henry and Martina were graders for Professors Kathawala and Green. Martina was also a grader for another professor who retired. Henry was also a tutor for the classes of Professors Kathawala and Green, and Martina was a tutor for statistics, organizational management and one other business course. The basis for the bulk of the Beverlys' complaint stems from allegations of sexual harassment while working as GAs and being retaliated against by EIU after complaining about the harassment.

A. Allegations Regarding Hostile Environment

Mirko Plass and Bryan Huhn worked as GAs along with the Beverlys and were also MBA students. Martina testified that in January 2004 she entered the GA work room with Henry and they overheard Huhn and Plass mention the Beverlys' names. Henry and Martina sat at two different work stations. Huhn sat at a work station across from Martina, and Plass sat at a table at the head of the room. No one else was present in the room. Martina testified she heard Plass say that "females are only good for fucks." Martina testified that Plass and Huhn also spoke about Cheryl Noll, MBA Coordinator of the College of Business, and some fellow GA's in sexual terms. Martina told Plass and Huhn that she found their speech inappropriate in a work environment. Martina and Henry complained to Noll about the incident and asked Noll to speak to Huhn and Plass. Noll took notes on what Martina said and thanked them.

The Beverlys further testified in deposition that Huhn and Plass downloaded pictures of nude women in the GA room on another day in January 2004. Martina and Henry were working in the GA room at the time. At one point, Martina turned to Henry and saw Plass's screen. Martina told Henry, and Henry told them it was inappropriate. Plass and Huhn laughed, began shutting down their computers, then left the room. Henry and Martina complained to Noll about the incident. When Henry told her he believed the conduct of Huhn and Plass was inappropriate, Noll shrugged her shoulders and took notes on the Beverlys' complaint. Martina also told Noll that she believed that things were getting out of control. Martina further testified that Huhn downloaded movies of men and women engaged in sexual intercourse on the GA room computers in February 2004. Martina indicated she saw the movie playing on Huhn's screen when she and Henry walked in the room. The Beverlys reported this incident to Noll the next day, and Noll took notes. The Beverlys do not know what Noll did in response.

Martina further testified that Huhn and Plass had a conversation of a sexual nature while the Beverlys were in the GA room with them in February 2004. When the Beverlys entered the room, Huhn and Plass say, "Oh, it's them again." The Beverlys then sat at work stations with their backs to Huhn and Plass who were sitting at another workstation facing a laptop computer. Huhn and Plass were engaged in a discussion which was not directed at the Beverlys. Martina testified she believed the conversation was about pornography on the laptop and she heard the conversation only momentarily. Martina further testified that she "briefly" saw the screen shot on the laptop screen as she walked in the room. Henry reported the incident to Noll and asked her to change the "hostile work environment." Noll took notes and thanked the Beverlys. The Beverlys further complained about the incident to Jane Wayland, then Associate Chair of the School of Business. Wayland informed the Beverlys that she would speak with Noll and look into the matter further. Henry further testified that the Beverlys asked Noll and Wayland to work in an area different than the GA room and that request was denied.

On February 12, 2004, the Beverlys met with Wayland and Noll. The Beverlys discussed the issues related to sexually offensive language and pornography on the computers. Noll and Wayland said they would look into the issues. The Beverlys further indicated they were being targeted by other GAs and treated differently by administrators.

In March 2004, the Beverlys walked into the GA room and saw a computer in one of the workstations with a nude female on the screen. Martina shut down the computer. Martina testified that the log-in on the computer indicated that Huhn had used the computer. The Beverlys informed Noll of the incident the following evening. Another day in March, the Beverlys were in the GA room with Huhn and Plass when Huhn said to Plass that "he's happy he doesn't depend on her [another GA's] ass anymore" and that "he doesn't want to have her in his life." The Beverly further indicate that Huhn shut down his computer and left when the Beverlys entered the room on five separate occasions. On three or four of those occasions, Martina saw that Huhn had been in a chat room or that there were offensive pictures on the screen before the computer was shut down. Also in March, Noll sent out a letter which Martina testified reminded everyone of the rules. Martina indicated that is why she believed Huhn acted as he did. Martina further testified that the letter "slightly curbed" some of the actions of which she had notified Noll.

The Beverlys began working in campus locations other than the GA room. Because the Beverlys could only access a certain database from the GA room computers, they came at a time when Plass and Huhn were not present. In April 2004, the Beverlys entered the GA room and found Huhn, Plass, and Lacy, another GA. The Beverlys saw a picture of several people, including a partially dressed female, on the screen of a laptop on one of the workstations. The picture was taken down immediately after the Beverlys walked in the room.

In May, the Beverlys entered the GA room on three or four occasions and briefly saw a picture of a nude man and woman on the computer screens. The Beverlys shut down the computers upon seeing the pictures. Martina testified that in August 2004 she walked into the GA room with Henry and observed "sexually explicit material" on a computer screen involving "an older male and a very young minor female." Henry testified he believed the female was under 12 years of age because she did not have "any development of the breasts." Henry further indicated that the video said "Brazilian teen sex movie" and the "individuals were engaged in oral, vaginal, and anal sex." Martina testified that they reported this incident to Noll immediately. According to Martina, Noll stated that if they could not handle porn at work they should look away.

The Beverlys further notified Blair Lord, Shirley Stewart, Nate Anderson, Robert Augustine, Monica Davenport, and Joe Barron of their complaints. Henry testified that Stewart stamped the complaint he gave her as having been received but later called and told him that she would not be taking any action on the complaint. Noll indicates in an affidavit that the complaints she received late in the spring 2004 semester were too general for her to take action because she did not know who was causing the alleged hostile work environment. When Noll received a specific complaint about pornographic movies and pictures on the computers in the GA room, Noll indicates she told Melissa Gordon, her administrative assistant, to determine if there was pornography on the computers. Noll indicates that Gordon found no pornography. Noll further indicates that she did not receive a written complaint about pornography until August 31, 2004. Noll states that Jeff Cross, the Associate Vice President for Academic Affairs, had the computers removed and replaced with newer models installed on September 9, 2004. The old computers were sent to University Information Technology Services, and Noll indicates no pornography was found on them.

B. Allegations Regarding Retaliation in Classes

Henry and Martina contend that they had trouble completing several courses required to graduate. The first of these was a finance course taught by Professor Chiou in the Fall of 2003. Only Henry was enrolled in this course. Henry alleges that Professor Chiou stated to Henry on the first day of class that he knew what Henry's grade would be and it would be a C. Henry further asserts that Chiou questioned him more than other individuals in the class and provided answers and solutions to students other than Henry. Henry raised this issue with Wayland. Wayland informed Henry not to rock the boat since he just started at EIU. Henry stated in his deposition that he believes Wayland spoke to Chiou about some of the complaints. Wayland did explain to Chiou that Henry was taking the class as a prerequisite for a graduate level class and the same standard should apply to him as that applied to other undergraduates. Henry received a grade of a high B or low A in the course.

The second class where Henry and Martina allege they suffered discrimination was in Professor Willem's quantitative analysis course. Henry and Martina assert that they were told their solution to a problem was incorrect on an exam that constituted one-eighth of their final grade. Henry testified that he and Martina checked with the publisher of their textbook and determined that their solutions were actually correct. According to Henry and Martina, when they confronted Willem about the discrepancy he said nothing but "looked bewildered." Henry and Martina assert that all of the other students had an identical answer to the problem different from them and the other students' answers were graded as being correct. Henry further testified that he complained to Willem that other students were sharing data solutions, and Willem did not respond. Henry believed this academic dishonesty affected his grade because Professor Willem graded on a curve. The Beverlys further assert Willem did not adequately control the class and they were prevented from hearing because other students were loud. Henry and Martina both received a B in the class. Martina testified that she and Henry informed Noll and Wayland that students were sharing exams in both Professor Willems' and Professor Boren's classes. According to Martina, the attitudes of the faculty towards the Beverlys changed after this complaint was made.

Henry and Martina next assert they encountered discrimination in Professor Laribee's Fraud Investigations class in the summer of 2004. Henry received a B in the class, although he feels he deserved an A. The Beverlys further allege that Professor Laribee placed his hand on Martina's back while she was sitting on a chair and while Laribee was addressing the class. Henry testified that he believed Laribee was "trying to hit on my wife." Martina testified that this happened three or four times. Henry informed Laribee that he found this action inappropriate. Laribee did not consider his conduct to be abnormal. After Henry spoke to Laribee about the situation, Henry and Martina switched seats to make Martina inaccessible to Laribee. Laribee allowed this and never touched Martina again. The Beverlys further allege that Laribee once stated in class that he was viewing pornography somewhere on campus when one of his students walked up and saw what was on the computer screen. The Beverlys also allege that Laribee made comments unrelated to class, including that he could damage data on a computer by pouring Coke over a disc that is then inserted in the computer, spoke about his marriage and divorce, made sexually related remarks in class, and commented that he sued the school. Martina further testified that another woman in the accounting department had a problem with Laribee making suggestive comments. Henry testified that he complained to Noll about these incidents with Laribee. Martina further testified that Laribee once said to Henry in class that he "has it very easy with an MBA since he is African American, he gets jobs thrown at him."

The Beverlys also allege discrimination relative to the finance class taught by Professor Zuhone in the fall of 2004. The Beverlys testified that they did not have an acceptable level of communication with Zuhone. Henry further indicated Zuhone would not call on him if Henry raised his hand in class. Henry testified that if he asked Zuhone a question about a situation he would not respond with an answer. When Zuhone did respond to their questions, he would tell them to get the book and look it up. The Beverlys also assert that Zuhone did not return four to eight assignments to them although the assignments were returned to other students. Approximately four weeks into the semester, Henry and Martina withdrew from the course because they did not receive any graded feedback from Zuhone. The Bevelys brought their complaints about Zuhone to the attention of Martha Brown, the Associate Dean of the College of Business and Applied Sciences, and Diane Hoadley, Dean of the College of Business and Applied Sciences, prior to their withdrawal from the class. Henry testified that Zuhone later approached him during a fire drill and told him that he was happy the Beverlys had withdrawn from the class.

A finance class taught by Professor McGrady provides further basis for the Beverlys' complaint. Henry testified that McGrady posted grades on the internet in a manner which identified which students earned which grades. Martina also indicated she did not receive assignments and handouts from McGrady which were received by other students. Henry provided a letter to Associate Dean Brown detailing the problems he encountered in the class. The Beverlys contend that McGrady continued this behavior even after they complained. Brown testified in deposition that she obtained a missing handout from McGrady for Martina, put it in an envelope and informed Martina by email and letter that she could pick up the handout from her receptionist. Henry also asserts that McGrady graded him harder than other students, including Martina who received an A in the class. Henry further asserts that McGrady would comment about complaints of child pornography at EIU and other matters which the Beverlys had complained about while standing next to Henry, although he did not identify Henry or Martina by name. Henry raised these concerns with Brown, and Brown told Henry she would look into it. Brown testified she did not specifically address these issues because she believed other members of the administration were taking care of it. Henry eventually withdrew from the class. Martina also testified regarding McGrady's class that Noll had contacted him ...


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