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Cosby v. Walsh Construction Co.

April 13, 2009


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Philena Cosby filed a pro se complaint against her former employer, Walsh Construction Company ("Walsh") alleging sex discrimination and sexual harassment in the form of a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII") and retaliation in violation of Title VII.*fn1 Defendant has moved for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons discussed below, defendant's motion is granted.


During the relevant time period, defendant was engaged as a general contractor on a project to erect new exterior canopies over the pedestrian walkways of Terminals 1 and 3 at O'Hare International Airport in Chicago, Illinois (the "Project"). Defendant hired plaintiff, a journeyman ironworker, in early May 2005 as one of the Project welders.

Defendant has a "zero tolerance" policy towards sexual harassment (the "Policy"). The Policy requires employees to report incidents of harassment to a supervisor. The day plaintiff began working for defendant, John Gardiner ("Gardiner"), a fellow ironworker and the ironworkers' union steward, informed plaintiff about defendant's Policy, instructed her about harassment in the workplace, and gave her a manual to read outlining the Policy which included the names and phone numbers of people to call in the event that plaintiff was harassed.

Laurel McKenzie was a project manager on the O'Hare Project ("McKenzie"). On approximately June 29, 2005, McKenzie approached plaintiff while she was working on a canopy to discuss plaintiff's work performance and apparent unhappiness on the job. The two discussed problems with the quality of plaintiff's work, certain problems plaintiff had at home, and her problems with other ironworkers. Plaintiff asserts that during this conversation she told McKenzie that two fellow male ironworkers were "sexually harassing" her by taking and hiding her tools and calling her "a dumb old girl." Plaintiff had told the offending parties to leave her tools alone because their actions were affecting her work. McKenzie does not recall this part of the conversation, but after the discussion no further tools of plaintiff's went missing.

Plaintiff encountered other incidents of offensive language while working on the Project. One day, while plaintiff and 25 to 30 other Project ironworkers were traveling on a company bus to the job site, David Brides ("Bridges"), a fellow ironworker, commented loudly that he had received a blow job from his manicurist "Ming Ling" during a regular appointment. Plaintiff complained to Bridges in a raised voice that "people don't want to hear that," and Bridges stopped his boasting. According to plaintiff she did not report this incident to a supervisor because both Bridges and plaintiff were speaking loudly enough that everyone in the bus could hear them, including Paul Chen ("Chen"), a Project foreman who managed the ironworkers. Paul Chen testified that he did not remember the incident.

Some time afterwards, plaintiff saw a fellow ironworker write the words "Fuck you, Philena" on a table in the work trailer. The trailer was used as a break room where employees ate lunch and where defendant conducted weekly safety meetings for ironworkers and other staff, including McKenzie. Plaintiff testified that the words "Fuck you Diane" and "Fuck you Sherman" were also written on the table. She complained directly to the offending ironworker, but she did not report the incident. Approximately two weeks later, on July 26, plaintiff was in the trailer for lunch and saw the words "Yo-suck my dildo ho" written on the break room table. She took a photograph of the new graffiti with her cell phone, but she did not show it to anyone. After lunch, she complained to Gardiner and he promptly removed the table, replacing it with a different one. Gardiner informed McKenzie of what had happened, but plaintiff did not report the graffiti to McKenzie herself until after her termination.

Plaintiff's Termination

Plaintiff was terminated on the afternoon of July 28, 2005. The "Termination Personnel Action Form" indicates that she was fired for poor workmanship. Handwritten notes authored by McKenzie comment that plaintiff "sets the amperage too high -- resets the machine every time she goes to weld" and "will not listen to advice on how to make betters welds." Before her termination, plaintiff was told at different times that some of her welds were too convex, too wide, undercut, or otherwise unacceptable. Chen testified that he repeatedly had to instruct her how to set the equipment, prepare her work area, and execute her tasks. Despite this feedback, plaintiff was never given a written or verbal warning that her work performance was unsatisfactory, and all of her welds were passed by the welding inspector.

When plaintiff received her final checks, she requested to meet with McKenzie to discuss her termination. During the meeting, McKenzie showed plaintiff photographs of her welding work that, plaintiff admits, depicted welds that were porous, convex, concave, and undercut. Plaintiff also reminded McKenzie about the tool hiding incident and informed her about the break room graffiti. McKenzie looked surprised when she heard about the graffiti. At the start of the shift the morning after plaintiff's termination, McKenzie conducted a meeting of the Project ironworkers to discuss defendant's anti-harassment policy and the graffiti on the break room table.

On August 9, 2005, plaintiff filed a charge of sex discrimination with the Equal Employment Opportunity Commission and received a right-to-sue letter. On November 13, 2006, she filed the complaint in the instant action.


Standard of ...

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