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Roby v. CWI. Inc.

September 11, 2008


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant CWI, Inc. d/b/a Camping World, Inc.'s ("CW") motion for summary judgment. For the reasons stated below, we grant the motion for summary judgment in its entirety.


Plaintiff Misty Roby ("Roby") alleges that she began working for CW as a cashier in May 2005. Roby contends that her supervisor, Joe Schiavone ("Schiavone"), began making sexually suggestive statements to Roby. On one occasion, Schiavone allegedly kneeled down near Roby's legs and when Roby asked if she should move, Schiavone allegedly responded: "I like it down here." (Compl. Par. 5). According to Roby, on another occasion Schiavone came up behind Roby and pressed his body against her body. Roby contends that in July 2005 she took maternity leave and, while Roby was on leave, Schiavone told another CW employee that after Roby returned to work Schiavone would "either lose his job or lose his wife because he wanted to be romantically and sexually involved with Roby." (Compl. Par. 7). On another occasion, Schiavone allegedly "smacked Roby on the buttocks." (Compl. Par. 10). Roby allegedly requested to work a different shift from Schiavone, but she was allegedly assigned the store closing shift with Schiavone. Roby states that she complained to management, but was only told not to discuss the situation with anyone else at work. Schiavone allegedly told other CW employees that Roby was trying to get him fired. Schiavone allegedly intimidated and taunted Roby and told Roby that nothing would happen to him because he is a "Mason." (Compl. Par. 13). Roby also contends that after she complained about Schiavone, on one occasion he placed his hand on her hip. Roby contends that on January 28, 2006, CW terminated Roby's employment. Roby brought the instant action and includes in her complaint a hostile work environment claim based on an alleged violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (Count I), and a Title VII retaliation claim (Count II). CW moves for summary judgment on both claims.


Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment, the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).


I. Whether Schiavone was Roby's Supervisor

We note that CW initially argues in a conclusory fashion that Schiavone was technically not Roby's supervisor since he did not have the authority to hire, fire, demote, or promote Roby. (Mem. SJ 8). CW asserts that Tim Heaton ("Heaton") was Roby's direct supervisor. (Mem. SJ 1). Roby responds by pointing to portions of the record indicating that she and other employees in the same position had a reasonable basis to conclude that Schiavone was Roby's supervisor. (Ans. SJ 9). CW did not support its argument that Schiavone was not Roby's supervisor. CW instead argued in its memorandum that whether Schiavone was Roby's supervisor is irrelevant and that, even if Schiavone was Roby's supervisor, under the analysis for supervisor liability, Roby cannot prevail. (Mem. SJ 8). Thus, for the purposes of the instant motion we will treat Schiavone as Roby's supervisor.

II. Hostile Work Environment Claim

CW moves for summary judgment on the hostile work environment claim.

CW argues that it cannot be held liable since there is not sufficient evidence that shows that CW failed to respond to complaints about the alleged harassment. CW asserts that it cannot be held liable for Schiavone's alleged misconduct even if he were considered to have been Roby's supervisor. An employer is "vicariously liable for hostile environment harassment perpetrated by a supervisor." Cerros v. Steel Technologies, Inc., 398 F.3d 944, 951 (7th Cir. 2005)(citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)). However, if the employee that was harassed by the supervisor did not suffer a tangible employment action, the employer can raise an affirmative defense known as the Ellerth/Faragher affirmative defense. Id.; Jackson v. County of Racine, 474 F.3d 493, 502 (7th Cir. 2007)(referring to the "Ellerth/Faragher affirmative defense"); McPherson v. City of Waukegan, 379 F.3d 430, 440 (7th Cir. 2004)(indicating that if no tangible action was taken by the employer, the employer can raise the Ellerth/Faragher affirmative defense).For the Ellerth/Faragher affirmative defense, the defendant employer must establish: (1) "'that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and'" (2) "'that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.'" Cerros, 398 F.3d at 951-52 (quoting Ellerth, 524 U.S. at 754).

A. Tangible Employment Action

Roby argues that CW cannot raise the Ellerth/Faragher affirmative defense because CW took a tangible employment action against her. A tangible employment action can constitute actions such as "'discharge, demotion, or undesirable reassignment'. . . ." Jackson, 474 F.3d at 501 (quoting Hill v. American General Finance, Inc., 218 F.3d 639, 643 (7th Cir. 2000)).

1. Termination of Employment

Roby first contends that she suffered a tangible employment action because she was discharged from her employment and her employment was allegedly terminated by CW in January 2006. (Compl. Par. 14); (SAF Par. 25-26). However, CW points to evidence that indicates that Roby's employment was not terminated in January 2006 and that she actually abandoned her employment. We first note that in some of Roby's filings she actually concedes that she was never officially fired by CW in January 2006 and Roby's position is that she was instead constructively discharged. (R SF Par. 60). For example, in response to CW's assertion in its statement of facts that Roby quit her job, Roby responds that "[i]t is denied that Roby quit working" and that "rather, she was effectively taken ...

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