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Kelly v. United Road Towing Service

March 12, 2009

KESHAUNTA KELLY, PLAINTIFF,
v.
UNITED ROAD TOWING SERVICE, INC., A/K/A E & R TOWING, DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Plaintiff Keshaunta Kelly (hereinafter, "Kelly") brings this action against Defendant United Road Towing Service, Inc. (hereinafter, "URT") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. In her Complaint, Kelly seeks to hold URT liable for sexual harassment for subjecting her to a hostile work environment and for retaliation for engaging in a protected activity. Presently before the Court is URT's Motion for Summary Judgment on both claims. For the following reasons, the Motion is granted in part and denied in part.

I. FACTS

A. Kelly's Employment at URT

URT provides impound services pursuant to contract with the City of Chicago and operates Auto Pound Six in Chicago. Def.'s Statement of Facts ("Def.'s SOF") ¶ 4. From October 27, 2006 to January 3, 2007, Kelly was employed by URT as a data entry clerk and as an undercover "mole" at Pound Six. Id. at ¶¶ 5, 6, 12. Kelly's duties as a clerk included administrative work, processing computerized data, and soliciting and reviewing information from vehicle owners. Id. at ¶¶ 8-9. In her role as an undercover mole, Kelly worked independently, investigating employee theft and reporting to management. Id. at ¶ 12. Kelly initially worked the overnight shift (12:00 a.m. to 7:00 a.m.). Id. at ¶ 13. About four nights per week, Bernard Kimble ("Kimble") was Kelly's supervisor, and one night per week, Sunette Hampton ("Hampton") was her supervisor. Kelly Dep. 95-97.

B. Kelly's Report of Harassment and URT's Response

Shortly after Kelly started her job at URT, Kimble began to engage in inappropriate behavior toward her. During this time, Kimble was training Kelly on her duties as a clerk in the back area of the office, and the two were often alone together. See Pl.'s Statement of Facts ("Pl.'s SOF") ¶ 7. On multiple occasions, without Kelly's consent, Kimble massaged her shoulders and made sexual comments, including that he: "[had] something better than that," "had something else soft," or "could give her something that [would] feel much better than that." Id. at ¶ 9; Kelly Dep. 106-114, 120-123. When Kelly asked Kimble to stop touching her, he stopped. Kelly Dep. 107-108, 113, 120-123. On one occasion, Kimble told Kelly that he had a "polish" for her. Id. at 114-118. Kimble also responded with sexual innuendo to Kelly's work-related questions and asked her out on dates, which she refused. Id. at 118-123. These incidents took place within a two-week time period. Id. Kimble's comments and conduct made Kelly feel uncomfortable, and she feared that she would lose her job if she complained. Pl.'s SOF ¶¶ at 13, 15.

On November 17, 2006, Kelly told Hampton and another shift supervisor, Anne Zelensky ("Zelensky"), that Kimble touched her inappropriately and made sexual comments to her. Kelly Dep. 119-120; Hampton Dep. 33-39. The same day, Hampton and Zelensky submitted written incident reports to Amber Tawlks ("Tawlks"), the Operations Manager at Pound Six. See Pl.'s Ex. F (Hampton's Incident Report); Pl.'s Ex. N (Zelensky's Incident Report). The reports listed Kelly's allegations that Kimble rubbed her shoulders without her permission and made sexual comments to her on multiple occasions. Id. At Hampton's request, Kelly wrote a letter to Tawlks, explaining that Kimble made sexual comments toward her that made her uncomfortable and asking that Tawlks call her to discuss the situation. Kelly Dep. 126-128; Pl.'s Ex Q (Letter from Kelly to Tawlks). In another letter to Tawlks dated November 18, 2006, Kelly stated that she wanted Kimble's behavior to stop, but that she did not want to cause trouble or to sue URT. See Pl.'s Ex. H (November 18, 2006 Letter from Kelly to Tawlks). Kelly wrote the second letter because she feared that her managers did not believe her complaint and that she might lose her job. See Kelly Dep. 131-136.

Once notified of Kelly's allegations, Tawlks informed her manager, David Corcoran ("Corcoran"), and began to investigate the claims. Tawlks Dep. 58-60. During the next few days, Tawlks interviewed Kelly and spoke to Kimble, who admitted to rubbing Kelly's shoulders but only did so at Kelly's request, and denied making any inappropriate remarks. Id.; Pl.'s Ex. T (November 17, 2006 Letter from Kimble). Tawlks also asked all other employees on Kelly's shift, and incident reports were collected from 26 URT employees regarding whether each employee had witnessed anything inappropriate between Kelly and Kimble. Hampton Dep. 42-47; Def.'s Ex. I (URT Incident Reports). After the investigation, which took about one day, URT management determined that Kimble had sexually harassed Kelly by touching her without her permission. Corcoran Dep. 50-53. Kimble was suspended without pay for three days. Def.'s SOF ¶ 29.

On November 20, 2006, Kelly signed a statement, acknowledging Kimble's suspension and that she was offered, but refused, the option of transferring to a different shift. Pl.'s Ex. K (November 20, 2006 Statement). Kelly was provided a contact number and a procedure to follow if any employee attempted to retaliate against her for her complaint. Id. During the rest of her tenure at URT, Kelly worked with Kimble on about three occasions, and Kimble did not harass her at any time. Def.'s SOF ¶¶ 34, 36.

At some point after she reported Kimble's misconduct, Kelly requested that she be transferred from work in the back office to customer service duties in the front office. Kelly Dep. 73-81. Kelly's request was granted the same day. Id. URT also granted Kelly's request to switch from the overnight shift to the third shift (3:00 p.m. t 12:00 a.m.). Id.

After Kelly's complaint about Kimble, several co-workers snubbed and harassed her, calling her a "snitch," a "ho," and a "trick," spitting on her car, and giving her bad looks. Pl.'s SOF ¶ 25; Kelly Dep. 153-158. Kelly reported one such incident to her supervisor, and that employee's behavior ceased. Kelly Dep. 157-158. According to Kelly, her supervisors had knowledge about this behavior, but they did not participate in it. Id.

URT has a written policy on sexual harassment, included in the Employee Handbook which is given to each new employee. Def.'s SOF ¶¶ 48-50; Kelly Dep. Ex. 7 (URT Employee Handbook). The policy defines sexual harassment, lists examples of prohibited conduct, and provides a procedure through which to report grievances. Id. All new URT employees are required to sign an acknowledgment that they have received and reviewed the policy. Id. Both Kelly and Kimble signed this acknowledgment. Def.'s SOF at ¶¶ 51-52.

C. Kelly's Termination

In late December 2006 and early January 2007, URT received two customer complaints about Kelly. In late December 2006, URT received a notice from the City of Chicago that a complaint had been lodged against Kelly for rude behavior toward a customer. Corcoran Dep. 84-87. On or about January 3, 2007, URT's General Manager, Joe Braverman ("Braverman"), visited Pound Six and observed Kelly acting in a rude and unprofessional manner toward a customer. Braverman Aff. ¶¶ 7-8. Kelly disputes that this incident occurred, and avers that she was not even working on January 3. Pl.'s SOF ¶¶ 29-30. The same day, which URT emphasizes was "on or about January 3," after seeing a letter from a customer complaining that Kelly was rude and discourteous, see Braverman Aff. ¶¶ 7-11, Ex. A-1 (January 3, 2007 Complaint), Braverman recommended that Tawlks fire Kelly because of her behavior toward customers. Braverman Aff. ¶¶ 10-11. On January 3, 2007, Kelly was notified that her employment with URT was terminated. Pl.'s Ex. W (January 3, 2007 Termination Notice). URT's stated reason for termination was that Kelly violated company policy and procedures. Id. URT management testified that Kelly was fired because of her discourteous attitude toward customers. See Tawlks Dep. 50-52; Tawlks Ex. 18; Braverman Aff. ¶¶ 9-11; Braverman Dep. 29-32.

In general, URT uses a progressive discipline policy with its employees, beginning with warnings, then suspension, probation, and termination. The progressive discipline policy is not employed in call cases of misconduct, and employees can be terminated in the absence ...


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