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Lesicko v. ConocoPhillips Pipe Line Co.

February 5, 2009


The opinion of the court was delivered by: Reagan, District Judge



Via complaint filed in this United States District Court on November 27, 2007, Julie Lesicko alleges that ConocoPhillips Pine Line Company (CP) discriminated against her on the basis of her gender and her age, in violation of Title VII of the Civil Rights Act of 1974, 42 U.S.C. 2000e, et seq., and the Age Discrimination in Employment Act, 28 U.S.C. 621, et seq.*fn1

More specifically, in Count 1 of her complaint, Lesicko claims she endured disparate treatment (i.e., "because of her sex," CP denied her vacation requests, denied her training and unfairly disciplined her) and sexual harassment, all of which created a hostile work environment and ultimately resulted in her constructive discharge on March 1, 2007. The allegedly harassing conduct includes sexually suggestive comments made toward or in front of Lesicko, sexually explicit photos/magazines in co-workers' lockers and desks, and a pornographic image placed in her locker, behavior which Lesicko claims CP condoned or failed to prevent.

In Count 2, Lesicko alleges that CP subjected her to unlawful age discrimination by denying her vacation requests and refusing to permit her to attend training that would have "afforded Plaintiff the opportunity for promotion," all of which caused her constructive discharge on March 1, 2007.

This Court enjoys subject matter jurisdiction under the federal question statute, 28 U.S.C. 1331. Trial is set to commence before the undersigned Judge on March 9, 2009.

Now before the Court is CP's December 12, 2008 summary judgment motion (Doc. 22), which was fully briefed as of January 29, 2009. For the reasons stated below, the Court hereby grants CP's motion.


Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FEDERAL RULE OF CIVIL PROCEDURE 56(c).

To defeat summary judgment, the nonmoving party must do more than raise a metaphysical doubt as to the material facts. Instead, she "must come forward with specific facts showing that there is a genuine issue for trial."

Keri v. Board of Trustees of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006), cert. denied, 549 U.S. 1210 (2007), citingMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

This Court can find a genuine issue of material fact precluding summary judgment "only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party." Argyropoulos v. City of Alton, 539 F.3d 724, 731 (7th Cir. 2008), quoting Sides v. City of Champaign, 496 F.3d 820, 826 (7th Cir. 2007). Bearing these standards in mind, the Court assesses the record before it, having carefully reviewed all the materials submitted with the summary judgment briefs.

Those materials include, inter alia, deposition excerpts of Plaintiff Julie Lesicko (who worked at CP from June 1995 to March 2007), Gerald Lesicko (whom Julie married in June 2002), Glen Morgan and James Rugg (both of whom supervised Julie Lesicko at CP) and Jeffrey Slaby (CP's District Director); discovery responses filed on behalf of Julie Lesicko; affidavits submitted by Morgan, Rugg, and two co-workers of Julie Lesicko (Becky Zimmer and Mike Hagan); handwritten notes and memoranda from CP managers; and materials from Julie Lesicko's personnel file (e.g., warning letters issued to Julie Lesicko, internal memoranda regarding possible violation of CP policies by Julie Lesicko, and Julie Lesicko's March 2007 resignation letter).*fn2


Lesicko's complaint contains sex discrimination and age discrimination claims. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). One type of sex discrimination claim involves disparate treatment based on gender. "Proof of intentional discrimination is required" for a disparate treatment claim. Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014, 1029 (7th Cir. 2003). An employer also violates Title VII by sexual harassment which affects the terms and conditions of employment. Id., 347 F.3d at 1033.

The ADEA declares it unlawful for an employer to discharge or discriminate against an individual in the terms and conditions of her employment based on her age. 29 U.S.C. § 623(a)(1); Peirick v. Indiana University-Purdue University, 510 F.3d 681, 694 (7th Cir. 2007).

To establish a claim under the ADEA, an employee must show that her age "actually motivated" the employer's decision against her. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008), quotingReeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000), and Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). In other words, the employee must show that her age "actually played a role in the decision-making process and had a determinative influence on the outcome." Faas, 532 F.3d at 641. Accord Hemsworth v., Inc., 476 F.3d 487, 490 (7th Cir. 2007).

In both Title VII disparate treatment cases and ADEA cases, a plaintiff may show discrimination under either the "direct" or the "indirect" method of proof. Brown v. Illinois Department of Natural Resources, 499 F.3d 675, 681 (7th Cir. 2007).

The direct method of proof involves admissions by the employer, near-admissions by the employer, and more attenuated circumstantial evidence that "suggests discrimination through a longer chain of inferences." Faas, 532 F.3d at 641; Hemsworth, 476 F.3d at 490. By contrast, the indirect method of proof involves a "certain subset of circumstantial evidence that includes how the employer treats similarly situated employees and conforms to the prescription of McDonnell Douglas Corp. v. Green." Faas, 532 F.3d at 641.*fn3

The United States Court of Appeals for the Seventh Circuit has been critical of this nomenclature, because the phrase "direct method" erroneously implies that an employee must proceed with direct evidence. See Faas, 532 F.3d at 641, and Luks v. Baxter Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006)(the distinction between the two avenues of proof is "vague," and the terms "direct" and "indirect" are themselves "somewhat misleading....").

The Seventh Circuit has explained:

"Direct" proof of discrimination is not limited to near-admissions by the employer that its decisions were based on a proscribed criterion (e.g., "You're too old to work here."), but also includes circumstantial evidence which suggests discrimination through a longer chain of inferences."... The focus of the direct method of proof thus is not whether the evidence offered is "direct" or "circumstantial" but rather whether the evidence "points directly" to a discriminatory reason for the employer's action.

Atanus, 502 F.3d at 671-72, citing Luks, 467 at 1052, and quoting Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 902-03 (7th Cir. 2006).

CP contends that Lesicko has identified no direct evidence of gender-based disparate treatment in her pleadings or in discovery, so she must rely on the indirect method of proof (Doc. 23, p. 9). Lesicko counters that some of her evidence does constitute direct evidence of discrimination based on gender (Doc. 28, p. 4).

Specifically, Lesicko characterizes as "direct evidence" comments by Terminal Superintendent Glen Morgan (a) querying whether she had been "busy with all the men I see" (her co-workers) over the weekend and (b) stating that he knew Lesicko "had a lot of boyfriends" (id.).

Under the direct method of proof, circumstantial evidence demonstrating intentional discrimination includes: "(1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group; (2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received systematically better treatment; and (3) evidence that the employee was qualified for the job in question but was passed over in ...

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