The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Pursuant to the schedule adopted in this case for streamlining summary proceedings, International Profit Associates, Inc. ("IPA") has moved for summary judgment against individual claimants Nos. 2, 7, 15, 17, 21, 37, 39, 43, 46, 55, 56, 57, 58, 61, 69, 72, 78, 88, 104, 107, 108, 113, 134, 137, 139, 147, 149, 157, 164, 166, 167, 169, 172, 175, 178, 180, 186, 187, 188, and 189 in this class action suit brought by the Equal Employment Opportunity Commission (the "EEOC"). For the reasons set forth below, these motions are resolved as follows.
The somewhat unusual procedural posture in which the present motions will be examined is by now familiar to both the parties and the court. In resolving the handful of summary judgment motions that IPA presented prior to the court' s adoption of the streamlined summary judgment schedule, the court summarized its disposition of previous issues presented in the case, and explained how the earlier rulings affected the parties'respective burdens at summary judgment. See E.E.O.C. v. Int'l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *1 (N.D. Ill. 2008). That discussion also guides the court' s analysis of the present motions (as well as those to be filed and resolved separately, pursuant to the streamlined schedule) and, for reference, is reproduced in whole:
Pursuant to the court' s memorandum opinion and order of October 23, 2007 (the "October 23rd Order"), this case has been bifurcated into two phases. See E.E.O.C. v. Int'l Profit Assocs., Inc., No. 1 C 4427, 2007 WL 3120069 at *17 (N.D. Ill. Oct. 23, 2007). In Phase I, the EEOC must establish by a preponderance of the evidence that the sexual harassment that occurred at IPA during the relevant time period, taken as a whole, was so severe or pervasive that a reasonable woman would find the work environment at IPA to be hostile or abusive. Id. Furthermore, the EEOC must also demonstrate that IPA knew, or should have known, that regular or systematic sexual harassment was occurring in its offices but did not take adequate steps to address the problem. Id. A finding in the EEOC's favor at Phase I will allow the court to award prospective relief under Int'l Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 (1977), and the court will then proceed to Phase II. Int'l Profit Assocs., Inc., 2007 WL 3120069 at *17.
In Phase II, the EEOC will be required to prove, by a preponderance of the evidence, that each individual claimant who seeks monetary damages experienced sex-based harassment that an objectively reasonable woman would find severe or pervasive enough to constitute a hostile work environment. Id. The EEOC must also demonstrate that each claimant subjectively perceived the harassment she experienced to be hostile or abusive. Id. The burden of production on the negligence element of the individual class members'claims, however, will be shifted to IPA if the jury returns a verdict in the EEOC's favor at the pattern or practice phase. Id. If IPA comes forward with evidence demonstrating that it was not negligent with respect to a particular class member, the burden will shift back to the EEOC to demonstrate that the steps IPA took were inadequate. Id. If the harassment any individual claimant experienced was perpetrated by a supervisor, rather than a co-worker, IPA will bear the burden of establishing an affirmative defense to its liability for the supervisor's harassment, if applicable. If IPA cannot do so, it will be held strictly liable for such harassment so long as the EEOC meets its burden with respect to the other elements. Id.
The EEOC must also make individual showings with respect to the amount of compensatory and punitive damages to which each claimant is entitled. Id. If punitive damages are awarded, the court will closely examine each award to ensure that the parameters of BMW v. Gore, 517 U.S. 559 (1996) and State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), as prescribed in the October 23rd Order, are met. Id. 2008 WL 4876860 at *1. Bearing in mind these considerations, the court proceeds to analyze the instant motions.
The Seventh Circuit has often described summary judgment as the "put up or shut up" moment in a lawsuit, when each party must show what evidence it has to convince a fact finder to rule in its favor. AA Sales & Associates, Inc., v. Coni-Seal, Inc., 550 F.3d.605, 612 (7th Cir. 2008) (citing Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). As the movant, IPA bears the initial burden of demonstrating that undisputed facts properly in the record entitle it to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986). If IPA meets this burden, EEOC, as the non-movant, must then point to specific record evidence that sufficiently controverts IPA's version of events to enable a jury to find in EEOC's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "If reasonable minds could differ as to the import of the evidence," the case must proceed to trial. Id. at 250-51.
The court must view any disputed facts in the light most favorable to EEOC, and it must draw all reasonable inferences from the undisputed facts in EEOC's favor. Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008). Because intent and credibility are typically crucial issues in employment discrimination cases, summary judgment must be approached with caution, and heightened scrutiny of the record is appropriate. See Talanda v. KFC Nat. Management Co., 140 F.3d 1090, 1095 (7th Cir. 1998).
A worker suffers sex-based discrimination under Title VII if she is subjected to sexual harassment that is sufficiently severe or pervasive that it alters the terms or conditions of her employment. See Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 73 (1986); Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir. 2007). Whether this standard is met turns on a "constellation of factors," Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000), including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 806-07 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Conduct that is "too tepid or intermittent or equivocal to make a reasonable person believe that she has been discriminated against on the basis of sex" is insufficient to show a hostile work environment. Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998) (quotation omitted). There is no "magic number" of incidents required to establish a hostile environment, however, and even one act of egregious harassment will suffice. Hostetler, 218 F.3d at 808 (citing cases).
In Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995), the Seventh Circuit addressed the types of conduct that may amount to actionable sexual harassment and observed that it is not always easy to draw the line between actionable and non-actionable conduct. The court nevertheless distinguished between general categories of behavior that fall on one side or the other of that line:
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1009-10 (7th Cir.1994). On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. Meritor Savings Bank v. Vinson, supra, 477 U.S. at 61, 106 S.Ct. at 2402-03; Rabidue v. Osceola Refining Co., 805 F.2d 611, 620-21 (6th Cir.1986); Katz v. Dole, 709 F.2d 251, 256 (4th Cir.1983).
50 F.3d at 430-31. When it is uncertain on which side of the line the offending conduct lies, the question must be left to the jury. Id. at 431.
Baskerville' s taxonomy of harassment is instructive, but it is not exhaustive of actionable conduct under Title VII. Indeed, even conduct that has no sexual content may be regarded as sexual harassment-and actionable as sex discrimination-if it is directed at a worker because of her sex and is sufficiently serious to alter the terms or conditions of her employment. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998) (citing Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). The Seventh's Circuit illustrated this principle in Carr v. Allison Gas Turbine Division, 32 F.3d 1007 (7th Cir. 1994), with the observation that "[i]f because [the claimant] was a woman [the employer] turned down the heat at her work station in order to make her uncomfortable, that would be actionable sex discrimination," id. at 1011, and again in Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999) ("It makes no difference that the assaults and the epithets sounded more like expressions of sex-based animus rather than misdirected sexual desire although power plays may lie just below the surface of much of the latter behavior as well. Either is actionable under Title VII as long as there is evidence suggesting that the objectionable workplace behavior is based on the sex of the target") (citing Oncale, 523 U.S. at 80). See also Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U.CHI.L.REV 1831, 1833 (2007) (explaining three distinct ways that workplace harassment can be "based on" sex: 1) where sex is the ground or basis for the worker' s harassment (as reflected in the preceding quotation); 2) where the harassment is sexual in content (e.g., the use of "denigrating stereotypes of women and insulting epithets about women"); and 3) where the content of the harassment concerns sexual relations ("in which the woman is being treated as a sexual object, a person available for sexual overtures and likely sexual favors, in a way that is either extortionate (quid pro quo) or intimidating ('hostile environment' , or both")).
District courts in this circuit have acknowledged this principle as well. Avdyli v. Barnhart, 05 C 2132, 2007 WL 57601 (N.D. Ill. Jan. 3, 2007 (Manning, J.) (citing Curde v. Xytel Corp., 912 F.Supp.335, 340 (N.D. Ill. 1995) ("We believe the most recent statements by the Seventh Circuit dispel the notion that hostile work environment claims are limited solely to situations of a sexual nature; rather, actionable harassment ' encompasses all forms of conduct that unreasonably interfere with an individual's work performance or create [ ] an intimidating, hostile, or offensive work environment.'") (citing Doe v. R.R. Donnelley & Sons, 42 F.3d 439, 443 (7th Cir.1994) (citing Meritor, 477 U.S. at 64) (emphasis added in Curde))); See also C. Geoffrey Weirich, Employment Discrimination Law, Ch. 20 at 593 (3d ed. 2002 Cumulative Supplement) ("Although harassment must be because of gender, it need not be sexual in nature to be actionable."); Alba Conte, Sexual Harassment in the Workplace, § 3.05[B] at 192 (3d. ed. 2000)
("Offensive verbal or physical conduct need not be overtly sexual to be deemed sexual harassment.").
Finally, a worker may be subject to sexual harassment either as the individual target of hostile or abusive conduct of a sexual nature, or because she is in the "target area" of such conduct. Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir. 2007). As the Seventh Circuit explained in Yuknis, "target area" harassment is no less actionable, nor categorically less serious, than individualized harassment. Id. Nevertheless, the offending behavior must affect the aggrieved worker directly, as it does, for example, if she sees or hears it. Id. An "[o]ffense based purely on hearsay or rumor" is generally insufficient to support an individual claim. Id.
The court assumes for the purpose of resolving IPA' s summary judgment motions that EEOC has already proven in Phase I that sexual harassment occurred at IPA during the relevant time period; that taken as a whole, it was sufficiently severe or pervasive that a reasonable woman would have found the work environment to be hostile or abusive; and that IPA knew or should have known that sexual harassment was rampant in its offices but failed to take adequate remedial steps. E.E.O.C. v. Int' l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *2 (N.D. Ill. 2008). Nevertheless, each claimant seeking monetary damages in Phase II must individually prove the elements of her hostile environment claim, namely, that: "(1) she was subject to unwelcome sexual harassment; (2) the harassment was based on sex; (3) the harassment had the effect of unreasonably interfering with her work performance in creating an intimidating, hostile, or offensive working environment that seriously affected her psychological well-being; and (4) there is a basis for employer liability" Benders v. Bellows and Bellows, 515 F.3d 757, 768 (7th Cir. 2008). Based on the presumed findings of Phase I, the individual claimants are deemed to have demonstrated a basis for employer liability. This means that the EEOC is not required, at this juncture, to point to specific evidence to support employer liability unless IPA claims, with respect to any particular claimant, that it took appropriate steps to correct the harassment she alleges. While EEOC must, pursuant to this court' s prior rulings, demonstrate the existence of a genuine dispute as to whether each claimant' s individual experience rises to the level of actionable harassment, the court is mindful that the totality of the circumstances it must consider in each case includes a presumed finding of severe or pervasive sexual harassment at IPA.
The court is also mindful of each party's objections to the propriety of its adversary' s evidence. Both sides have moved to strike portions of the factual record, and while the court has denied these motions (or denies them as moot concurrently with the present order), it has carefully considered each side' s objections. The factual accounts below are based on evidence the court deems properly before it.*fn1
Claimant No. 2 was a business coordinator at IPA for approximately four years, from late 1996 to mid-2000. She claims that Keith Link, a colleague who later became a manager, asked her out, then continued to pursue her romantically despite her repeated statements to him that she was not interested. No. 2 claims that Link made comments to her such as, "You want to get laid tonight?" (to which No. 2 responded, "You know that' s never going to happen") and "why don' t you come on over. I can, you know, give you a good time," and that Link asked No. 2' s supervisor to find out whether she would go out with him.
On one occasion, No. 2' s car broke down in IPA's parking lot, and she asked Link (by then a manager, though not No. 2' s supervisor, whose car was parked next to No. 2' s) whether he would give her a jump. He said he would, but that she would owe him a blow-job. No. 2 assumed Link was joking, and laughed the comment off. As No. 2 was seated in the driver's seat of her car, preparing to leave after the two had successfully started her car, Link positioned himself between No. 2 and the open car door, which evidently prevented her from closing the door. With his crotch in her face, Link began to unzip his pants and thrust himself forward, repeating, "you owe me a blow job." No. 2 responded by moving her head back and physically pushing Link away.
The next day, as No. 2 passed Link's desk on her way into work, Link said to the people in the area, "Oh, there's [No. 2]. Well don' t do anything for her because she never keeps her promises." After Link' s comment, No. 2 discussed the parking lot incident with her supervisor, Dmitri Kotsakis, then met with Kotsakis and Tony Jones, then-Director of the Business Coordination Department. No. 2 claims Kotsakis and Jones suggested No. 2 "keep it in the IPA family," as opposed to taking her complaint about Link to human resources. No. 2 claims she agreed not to go to human resources because Kotsakis and Jones agreed to talk to Link, and because she was fearful that people would talk or laugh behind her back if she took a complaint about a blow job to human resources. Kotsakis and Jones did, in fact, talk to Link, whose sexually offensive conduct and language ceased.
No. 2 also claims that she saw John Burgess, IPA's Managing Director, comment on a particular female employee' s cleavage and figure. She further claims that another female employee reported to her that Burgess made sexually explicit comments to her.
No. 2 also heard other managers make comments about women's intimate body parts as they walked by, and claims that some managers touched women inappropriately at work.
No. 2 further complains that Shawn Fishman, an acting zone manager, used the word "cunt" repeatedly in front of her, despite her request that he not use that word, and even after Kotsakis (to whom No. 2 had complained about Fishman's use of the word) told him to stop. She also states that she complained to several managers about the sexually explicit "motivational speeches" these and other managers made to the workforce. The speeches contained phrases such as "go out there and grab your balls. Whack your peepee." No. 2 claims that during a work dispute, she was once called a "prima donna bitch" by a male manager. Occasionally, when women in her "zone" expressed excitement or concerned about something, remarks would be made that they were "code red," which she understood to mean that they were menstruating. On one occasion, her manager used the speaker phone and announced, "[No. 2], code red. Code red."
Finally, No. 2 claims that she complained to her manager, David Soskin, that she felt excluded from the "inner circle" at IPA, despite her hard work and good performance. She claims that Soskin responded by suggest that she could get further if she were "a little nicer to some of the top management." Suspecting this was a sexual innuendo, No. 2 asked, "you mean like a blow job or something?" to which Soskin allegedly responded, "well, I'm not saying for myself or anything," while shaking his head affirmatively.
IPA asserts that these episodes are neither severe nor pervasive enough to be actionable, nor are they based on sex. The first of these arguments is patently without merit. The parking lot incident alone is sufficiently egregious to raise a genuine dispute as to whether a reasonable woman would find the environment to which No. 2 was subjected hostile. Viewing the evidence in the light most favorable to EEOC, Link not only verbally solicited No. 2 for sex, he physically cornered her and placed his genitals in her face, while telling her that she owed him a "blow job." That Link did not touch No. 2 before she physically pushed him away is immaterial. Having a co-worker force his genitals at one' s face is not conduct that would be anticipated in the workplace, and a reasonable person in No. 2' s position "might well experience that type of behavior as humiliating, and quite possibly threatening." Hostetler, 218 F.3d 798, 808 (forcibly kissing co-worker and unsnapping her brassiere is actionable conduct). IPA' s argument that No. 2 herself interpreted the incident as nothing more than a "crude joke"is disingenuous, as it ignores substantial portions of No. 2' s testimony.
Although IPA does not explicitly argue that it should escape liability for Link's conduct based on Kotsakis' s and Jones's response to No. 2' s complaint, it suggests as much by asserting that Link stopped harassing No. 2 after they spoke to him. While it may be true that Link' s sexually offensive conduct ceased, in light of the egregiousness of his behavior, No. 2' s claim that her managers urged her not to escalate her complaint, and the presumption that IPA did not, as a general matter, take appropriate measures to curtail pervasive workplace harassment, IPA has not demonstrated that its response to this episode was adequate.
IPA's argument that No. 2' s claims are not based on sex addresses only a portion of her claims, notably ignoring the parking lot episode. As to that incident, IPA does not suggest, nor does the evidence support, that it was based on anything other than sex.
Because the court finds summary judgment inappropriate as to No. 2 based on the parking lot incident alone, it need not linger on the extent to which her additional allegations support her claim of a hostile work environment, and merely notes in passing that conduct "designed to sexually humiliate [No. 2] in front of her co-workers," as, for example, the "[No. 2], code red. Code red." announcement seems to have been, likely falls on the side of actionable harassment, particularly in the context of pervasive sex-based discrimination. See E.E.O.C. v. Int'l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *7 (N.D. Ill. 2008).
For the foregoing reasons, IPA's motion as to Claimant No. 2 is denied.
The parties disagree about how long Claimant No. 7 worked at IPA, and whether she worked only as a business coordinator (as IPA states), or also in inside sales in the coaching department (as EEOC claims). The parties agree, however, that No. 7 worked for IPA for some period of time between August 2000 and January 2001, and the disputed details of her tenure are not material to IPA' s motion.
No. 7 claims that in the short time she was employed by IPA, she was grabbed, touched, and slapped on the buttocks several times by male co-workers when she stood up from her cubicle in the Business Coordination Department. She claims that she saw the same thing happen to at least one other female colleague, and she believes that at least that colleague saw it happen to her.
No. 7 also claims that during her training, IPA trainer Steven Rochenburg told her dirty jokes on a daily basis and ostentatiously scratched his genitals in front of her. Her supervisor, Phil Olsen, told No. 7 that he thought she would look good with her clothes off, thought she had nice breasts, and thought she would be good in bed. No. 7 claims that she reported Rochenburg' s and Olsen' s behavior to Shelle Bareck, Director of Human Resources, and that Bareck said she would look into it, but also told No. 7 that "men will be men" and that she should "just let it go and let bygones be bygones." No. 7 is not aware of (nor does IPA assert) any action taken in response to her complaints.
No. 7 claims that at the office Christmas party, IPA' s Managing Director, John Burgess, told her that she could go far with the company if she was "very good to him," which No. 7 understood to mean that she would advance professionally if she performed sexual favors for Burgess. At the same party, a male colleague told her she had a "great mouth that would be good for oral sex." No. 7 reported the latter incident to her manager, John Greco, who said he would "look into it" and advised No. 7 to "just stay away" from the offending colleague. No. 7 is not aware of (nor does IPA assert) any action taken in response to her complaint to Greco.
IPA argues that No. 7' s claims are not severe or pervasive enough to be actionable, that her allegations are too vague and unspecific to support her claim, and that No. 7 was never bothered again after reporting the offending conduct to IPA management.
While it is true that No. 7' s claims relate to conduct that may be considered comparatively less severe than that described by certain other claimants, harassment need not be both severe and pervasive to be actionable. Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999). No. 7' s catalog of complaints is appreciable, given the short period of time she was employed by IPA. The court is convinced that in this light, a reasonable individual could find that the conduct No. 7 describes was pervasive. IPA seeks to defeat No. 7' s claims based on Koelsch v. Beltone Electronics Corp., 46 F.3d 705 (7th Cir. 1995), which upheld summary judgment in the defendant' s favor despite the claimant' s allegations that: the president of the company had grabbed her buttocks and rubbed his foot against her leg without her consent; the president had told the claimant that he found her attractive and could not control himself in her presence; a group of employees asked her to donate a pubic hair for a collection they were taking up as a gift for the company president; and she heard rumors about a sexually explicit photograph the company president purportedly carried in his wallet. Id. at 706-707. While some of this conduct is similar to that alleged by No. 7, the conduct in Koelsch occurred over a period five years, rather than (at most) five months, as alleged here. Moreover, the unwelcome touching No. 7 alleges was witnessed by at least one co-worker (the buttocks-grabbing in Koelsch occurred while the claimant and alleged harasser were alone). Although the physical contact No. 7 alleges is similar to that in Koelsch, the fact that it occurred in front of at least one co-worker is a reasonable basis for considering it more serious, since conduct designed to degrade or sexually humiliate the victim in front of co-workers is particularly egregious. See E.E.O.C. v. Int'l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *7 (N.D. Ill. 2008).
Although none of the comments No. 7 claims were directed to her were explicit sexual invitations, they nevertheless amount to more than mere "occasional vulgar banter, tinged with sexual innuendo," Baskerville, 50 F.3d at 421, and a reasonable woman could find that her co-workers' and superiors' repeated comments about her intimate body parts, and their suggestions about sexual acts she could perform, were deeply offensive.
Indeed, No. 7' s complaints to human resources about this conduct demonstrate that she was, in fact, offended.
While certain of the conduct No. 7 alleges, such as the reference to "dirty jokes" may be too unspecific, standing alone, to persuade a jury that her work environment was intolerably hostile, the cumulative effect of crude jokes, unwelcome physical conduct by male co-workers (even if they cannot be identified by name), and overtly sexual comments directed at her by both colleagues and superiors is not so "tepid, intermittent or equivocal," in the context of an environment pervaded with sexual harassment, that no jury could find in No. 7' s favor.
The court agrees that allegations based on rumor or hearsay are insufficient to support No. 7' s claim. But the conduct No. 7 directly experienced is sufficiently serious to survive summary judgment. That No. 7 was "never bothered again" by certain individuals whose behavior she reported appears from the record to have been more a fortuitous circumstance than a testament to the effectiveness of any remedial action taken by IPA (again, IPA has not identified any) and does not entitle IPA to judgment.
For these reasons, IPA's motion as to No. 7 is denied.
Claimant No. 15 worked in administration and as a business coordinator at IPA for approximately six months in 1999 and 2000. During the first few months of that time, a zone manager, Blake Hamilton, called No. 15 "penis head" multiple times a week over the course of several months and also pointed and referred to her breasts as "M&M's." No. 15 also claims that an assistant zone manager, John Narcisse, looked at her as though he were "checking her out" and walked up behind her on at two occasions and massaged her back and shoulders. After the second time, No. 15 gave Narcisse a nasty look to let him know she didn' t appreciate the contact, and he never did it again. On another occasion, No. 15 heard a male employee say about a female employee, "I' d fuck her."
No. 15 claims that while she was working as a receptionist, someone called her on at least two occasions with a sex line on the phone. No. 15 claims she heard women referred to as "bitches" on a daily basis, and she recalls several instances in which managers used the word in expressions like, "I'm getting tired of that bitch." On one occasion, No. 15 heard one or more male colleagues whistle and say "look at the booty" as she was leaving the room. She also heard male employees say, on at least five occasions "Oh, look at that ass," in reference to women wearing skirts. No. 15 saw Tyler Burgess, a male manager, slap Claimant No. 134, a female colleague, on the buttocks on two occasions. Williams screamed at Burgess and hit him after one of these incidents.
One day, No. 15 saw five photocopies, taped up in various publicly-viewed locations of the Business Coordination area, of a woman' s buttocks in stockings with the words "big booty [No. 134]" written on them. The photocopies were hanging up for a few minutes before someone took them down.
While No. 15 was working as the evening receptionist after hours one day, she saw a female business coordinator enter the office of senior executive Scott Kollins. Kollins himself arrived sometime thereafter, and the two closed the door and played loud music, remaining in the office until No. 15 left for the evening. The following day, upon hearing No. 15 and another claimant discussing the incident, Rich Lubicz, Director of Business Coordination Department, said, "maybe she was in there sucking his dick," before laughing and walking away.
After No. 15 was fired, she complained to Shelle Bareck, Director of Human Resources, asking "Do you have to be fucking or sucking someone around here to keep your job?" Bareck replied, "Well, what did you expect. This is a company run by men. I'm the only woman, and that' s just how things are."*fn2
IPA argues that these allegations do not rise to the level of seriousness necessary to support an actionable claim. The court disagrees. While the impact on a reasonable woman of the "penis head" and "M&M' s" comments might be negligible if they were stray or isolated, No. 15 claims that these comments-which can reasonably be construed as based on sex, since the former sexualized No. 15' s hairstyle, while the latter likened her breasts to candy-were directed at her several times a week for several months. Although these comments did not expressly reference or solicit sexual relations, it is difficult to imagine a male worker being subjected to this type of offensive comments. The same can be said of the various "booty" comments. No. 15' s testimony supports a finding that she was "exposed to disadvantageous terms or conditions of employment to which members of the other sex [were] not exposed," Oncale, 523 U.S. at 80.
Likewise, a jury could find that the frequency and the manner in which No. 15 heard the word "bitch" used by male employees was sufficient to render her workplace objectively hostile. In addition, No. 15 heard multiple comments sexualizing or attributing sex acts to female workers ("I' d fuck her," and "maybe she was in there sucking his dick" are two choice examples), and she saw other women being treated in the workplace as available sex objects. A jury could reasonably find that the cumulative effect of these comments and conduct was sufficiently serious to alter the terms or conditions of No. 15' s employment.
Finally, No. 15' s allegations about Shelle Barack' s response to her complaint about being terminated emphasize what the court already presumes for the purpose of IPA's summary judgment motions: that IPA was aware of severe and pervasive sexual harassment among its employees but failed to take reasonable corrective action.
For the foregoing reasons, IPA's motion as to Claimant No. 15 is denied.
Claimant No. 17 responded to an advertisement for a management position at IPA. After her interview, she received a call offering her a job as a "telemarketer" (in fact she was hired as a business coordinator) and was told that she had to start there before moving to a job in management. After a week as a business coordinator, she asked her supervisor when she would be promoted. He put his arm around her, smirked, and said "well, there are certain things that you have to do in order to advance." No. 17 interpreted her supervisor' s words and body language to mean that she had to have sexual relations with someone at IPA in order to be promoted. No. 17 claims that she had a nearly identical exchange with her supervisor on two other occasions. No. 17 also states that her supervisor made unwelcome physical contact with her (by putting his arm around her each time she approached him, and by leaning his chest into her shoulder on two or three occasions), and that she witnessed similar contact between other supervisors and female employees. No. 17 also claims she saw female employees give male supervisors their phone numbers, and she believed doing so was required to advance at IPA. As a result of these circumstances, No 17 felt stressed, cheap, inadequate, upset, angry, and humiliated. She began to miss days of work, and finally she quit her job. All of this occurred over the course of three weeks.
IPA argues that the conduct No. 17 describes is not severe or pervasive enough to support a claim for a hostile work environment and asserts that her "unreasonable and far-fetched conclusion" that her supervisor was asking for sexual favors does not support her claim of harassment. IPA also argues that No. 17' s allegations are generally too vague and conclusory to support her claim.
EEOC responds that No. 17' s three exchanges with her supervisor represent a "textbook case" of the quid pro quo theory of sexual harassment. EEOC also argues that No. 17 was the victim of a hostile work environment based on her encounters with her supervisor and the workplace scenes she witnessed.
Because most of the court' s and parties' attention in this case has been focused on the hostile work environment theory of sexual harassment, a brief discussion of the so-called quid pro quo theory is in order. Allegations that an employer demanded sexual favors from an employee in return for a job benefit is actionable under Title VII because such conduct explicitly (as opposed to constructively, as in hostile environment claims) alters the terms or conditions of the victim's work. Burlington Indus. v. Ellerth, 524 U.S. 742, 751 (1998). Such allegations were formerly considered to state a quid pro quo claim of sexual harassment. More recently, however, "the concept of quid pro quo harassment has largely been abandoned; courts distinguish instead between cases in which the plaintiff suffered a tangible employment action and those in which no such action was taken." Godin v. Whirlpool Corp., 132 Fed. Appx. 661, 664 (7th Cir. 2005) (citing cases).
It is clear from No. 17' s claim that she rebuffed, rather than submitted to, her supervisor' s advances. The question, then, is whether a reasonable jury could find that her refusal to indulge him resulted in a tangible employment action against her. If so, then her claim may proceed regardless of whether the alleged conduct was severe and pervasive. If she suffered no tangible employment action, however, then any alteration in the terms or conditions of her employment was constructive, i.e., due to a hostile environment, and she must prove that it was severe or pervasive. See Ellerth, 524 U.S. 751.
Despite its assertion that No. 17 experienced "a textbook case" of quid pro quo sexual harassment, EEOC does not assert that No. 17 was denied any tangible job benefit. Nevertheless, the court is mindful that it must draw all reasonable inferences in EEOC's favor and thus construes No. 17' s claims as an assertion, however oblique, that she was refused a promotion based on her unwillingness to submit to her supervisor' s advances.
Failure to promote may qualify as a tangible employment action. Ellerth, 524 U.S. 742, 761 (1998). To prevail on such a claim, however, No. 17 must prove that she was denied a promotion for which she was qualified. Godin, 132 Fed.Appx. 661, at 664. No reasonable jury could draw this conclusion based on the evidence EEOC presents. To begin with, No. 17' s entire tenure at IPA lasted only three weeks (which period encompassed the Christmas holiday), and by the time she quit her job, she had already missed several days of work. Moreover, No. 17 admits she was told she would have to gain experience in her position before being promoted, and her employment agreement with IPA explicitly stated that her first thirty days were considered a "probationary period." These are not circumstances in which one can reasonably conclude that No. 17 was "denied" a promotion at all, much less that she was denied a promotion for failing to engage in sex with her supervisor. Notably, EEOC has not offered any evidence to suggest that IPA in fact promoted other workers under such circumstances. That No. 17 had experience as a sales manager at another company does not, by itself, demonstrate that she was qualified for the promotion she sought. For these reasons, No. 17' s "quid quo pro" claim fails.
No. 17 may, nevertheless, succeed in convincing a jury that she was subjected to a hostile environment based on the conduct she alleges. Although the physical contact she asserts (her supervisor's putting his arm around her and his chest on her shoulder) does not appear to have been particularly threatening, a reasonable woman could interpret the combination of the gestures and his alleged comment that No. 17 would have to do "certain things" to advance at the company as unwanted pressure to engage in sex, or even as a threat that she would suffer negative professional consequences if she did not engage in sexual behavior with him. Though the fact that No. 17 saw female co-workers giving their phone numbers to male supervisors, and saw the supervisors put their arms around these women, may not, standing alone, support her hostile environment claim, but a jury could conclude that these workplace scenes reinforced the message No. 17 claims she received from her supervisor three times in as many weeks: women who engage in sexual activity with their supervisors are successful at the company, while those who do not are not.
For the foregoing reasons, IPA's motion as to Claimant No. 17 is denied.
Claimant No. 21 was employed by IPA as an administrative assistant and a business coordinator from April of 1998 to July of 1999. She claims that during that time, IPA' s managing director, John Burgess, regularly asked her when she was going to "take care of" a male co-worker, Jason Zolnowski, who Burgess said was a virgin. No. 21 understood this question as a suggestion that No. 21 should have sex with Zolnowski. These comments, which were sometimes made in front of other IPA employees, made No. 21 extremely uncomfortable, and she asked Zolnowski and Tyler Burgess (John Burgess' s son and a manager at the company) to ask John Burgess to stop. The comments continued on a weekly basis throughout No. 21' s employment at IPA. John Burgess also told No. 21 that her blouse would be nicer if it were see-through, and suggested that she wear low-cut blouses and shorter skirts.
No. 21 also alleges that she heard male co-workers make comments about female co-workers'breasts; about their short skirts; and about how they "wouldn' t mind doing that one" (not, apparently, a reference to No. 21).
On one occasion, No. 21 heard that a male stripper was in the office of a female executive at the company, and she saw a crowd going in and out of the executive' s office.
Curious, No. 21 went to have a look, and saw (from the back), a man dressed in only a g-string, with his bare buttocks exposed. No. 21 thought it was "repulsive and offensive" that a stripper had been hired to perform in the office during the workday.
No. 21 also heard a series of rumors about untoward office behavior: that a female co-worker had exposed her bare breasts at the office; that John Burgess gave a female employee a Jeep Cherokee in exchange for oral sex; and that Burgess had hired a stripper whom he had met in Las Vegas to work in the Inside Sales department. No. 21 learned the final tidbit from Rich Lubicz, the Director of Business Coordination, who commented to No. 21 about the stripper's appearance and on the "services" she could provide. No. 21 stated she was "uncomfortable" that Lubicz would make such comments.
IPA argues that No. 21' s claims should be dismissed because the conduct she describes is neither severe nor pervasive enough to support her claim. IPA further argues that her allegations are too vague and unspecific to be actionable.
The court agrees that No. 21' s allegations about rumors do little to advance her claims. Yuknis v. First Student, Inc., 481 F.3d 552, 556 (7th Cir. 2007) ("Offense based purely on hearsay or rumor" is "less wounding than offense based on hearing or seeing"). But No. 21' s claims are not based "purely" on rumor. She also alleges conduct that directly affected her, either because she was the individual target or because she saw and heard male employees talking about other women in the workplace in objectifying, sexualized terms. These allegations do support her claim.
First, No. 21 complains about John Burgess' s incessant suggestion that she "take care of" her co-worker. These comments-which a jury could reasonably construe as sexual, based on No. 21' s description of them and the atmosphere at IPA as a whole- could conceivably be relegated to the category of non-actionable sexual "humor" if they were isolated remarks. But No. 21 alleges that she heard these comments week in and week out, and that she was "mortified" by the comments. In addition, Burgess allegedly told No. 21 that she should wear see-through blouses and shorter skirts. These comments-like those No. 21 alleges she often heard male colleagues make about female co-workers' body parts or their desirableness as sex partners-demean women workers by reducing them to sexual objects. See Nussbaum, Carr, Before and After: Power and Sex in Carr v. Allison Gas Turbine Division, General Motors Corp., 74 U.CHI.L.REV 1831, 1833 (2007). There is no evidence, and indeed it is somewhat difficult to imagine, that male employees were the objects of similar sexual attentions. Regardless of whether Burgess' s suggestion that No. 21 "take care of" her co-worker was intended as humor, a reasonable woman could find that the repetition of that particular joke, coupled with the sexually demeaning or humiliating comments No. 21 alleges she heard, so pervaded No. 21' s workplace as to alter the terms or conditions of her employment.
As to the allegations regarding the male stripper, neither party has advanced any authority that speaks to whether an employer who condones (or, at least, does not forbid) sexually explicit entertainment at the workplace creates a hostile environment under Title VII. It seems to the court that while myriad considerations undoubtedly counsel against fostering a sexually charged atmosphere at the office, it is not clear that the scene No. 21 described-a male stripper in a g-string performing for a female colleague-would be any more offensive to female workers than it would be to male workers. Nevertheless, IPA does not argue that No. 21 fails to show that the harassment she alleges was based on sex. Mindful that it must draw all reasonable inferences in favor of the non-movant, the court assumes that No. 21' s allegations about the stripper support her claim of sex-based harassment.
For the above reasons, IPA' s motion as to Claimant No. 21 is denied.
Claimant No. 37 worked at IPA as an administrative assistant for approximately ten months from July 1999 to May 2000. She claims that during that period, she regularly heard comments "of a sexual nature" directed to her and to other female employees by male co-workers and superiors. For the most part, No. 37 does not specify what these comments were. Here are a few exceptions: No. 37 heard John Burgess say to his secretary, "You' re looking mighty fine today" and "It' s a good thing you left your husband. Now you' re open for a real man." IPA's Chief Financial Officer, Gregg Steinberg, said to No. 37 on one occasion, "You know.if you dressed like that more often you' d get that raise and promotion you were looking for. Otherwise, you' re going to end up staying here forever." Steinberg also told her, "You need to show what God gave you." When No. 37 complained about the latter comment to a female supervisor, the supervisor said, "Get over it. You have a chest. Show it." No. 37 also claims that she heard Steinberg say to other women, "Nice ass. Nice skirt. Glad you' re showing a little more today."*fn3 No. 37 also claims she heard Rich Lubicz say to other female employees, "nice ass," and "you've got a nice rack," and that Lubicz asked other female employees out on dates. No. 37 claims that she heard Lubicz make comments of this nature about ten times a day, three days a week, for about three or four months.
No. 37 also claims that she heard, from various sources, about additional untoward office behavior: that a female stripper had been hired by John Burgess for Rich Lubicz's birthday and was performing in the lunchroom; that Lubicz and other male managers made sexually inappropriate remarks.
No. 37 repeatedly voiced her objection to the conduct she described. She complained to her (female) supervisors in the accounting department about Steinberg's comments and about the stripper, and also complained (though about what is not clear) to another manager, Doug McClain. On the day of the stripper incident, Shelle Bareck, Director of Human Resources, called No. 37 into her office and told No. 37 that she (Shelle) had heard No. 37 had been "whining about what happened in the lunchroom" and needed to "get over [her]self."
A few weeks later, No. 37 arrived at work one morning to discover she had been "demoted" to the position of business coordinator from her position in accounting. Gregg Steinberg told her that her "comments were becoming ludicrous" and that nobody wanted her in their department. At her deposition, No. 37 testified that the "comments" to which Steinberg referred had to do with her complaints about the treatment of employees at IPA, and specifically about the working hours and lunch breaks. No. 37 testified that Steinberg was not referring to her comments about the "Rich Lubicz incident."
IPA argues that No. 37' s claims do not describe conduct that is severe or pervasive enough to be actionable, and that her allegations are too vague and conclusory to withstand summary judgment.
Although EEOC seems to suggest that No. 37' s "demotion" was the result of her complaints, it does not clearly assert that she suffered a tangible employment action as a result of sex discrimination (i.e., a "quid pro quo" claim). Indeed, it appears from the record that to the extent No. 37 was "demoted" at all (IPA contests this), her change in status was related to complaints she made that had nothing to do with the harassment she alleges. Accordingly, the court examines whether No. 37' s claim can withstand summary judgment based on her allegations of hostile environment.
First, as discussed with respect to other claimants, claims based on rumors- including No. 37' s allegations involving third-party reports of unsavory goings-on in the corporate lunchroom-are too remote, as far as No. 37 is concerned, to support her claim. See Yuknis, 481 F.3d at 555-56. And while the comments No. 37 attributes to Shelle Bareck may well support employer liability, they do not substitute for specific evidence of sex-based harassment. These allegations thus do not support No. 37' s claim.
As the case law in this area (including in this particular case) makes clear, whether or not a hostile environment claim is actionable depends on a highly nuanced assessment of the likely impact of the challenged words or conduct on a reasonable individual. Claims generically alleging comments "of a sexual nature" are insufficiently precise to allow the court-or the fact finder-to "provide a basis to determine whether that conduct was severe, pervasive, and objectively offensive harassment." Gabrielle M. v. Park Forest-Chicago Heights, Ill. School Dist. 163, 315 F.3d 817, 823 (7th Cir. 2003) (five year old plaintiff's allegations that classmate did "nasty stuff," and father's testimony that classmate touched plaintiff's "[p]rivate parts, chest" insufficiently precise to withstand summary judgment).*fn4 While it is true that a plaintiff need not remember every detail of every offensive comment, see Dey v. Colt Const. & Development Co., 28 F.3d 1446, 1457 (7th Cir. 1994), she must nevertheless present sufficient evidence to enable a fact finder to determine whether the conduct alleged falls on one side or the other of the Baskerville line.
It is true that No. 37 alleges comments "of a sexual nature," which, standing alone, are too vague to support her claim, since this description encompasses both activity that is generally actionable (solicitations for sex, for example), and activity that is not (telling vulgar jokes). It is also true that some of the comments that No. 37 does recall with specificity are the kind of "tepid" remarks that fall on the non-actionable side of the Baskerville line (e.g., "you' re looking mighty fine today.") On the other hand, however, certain of the comments No. 37 heard referred to female employees'body parts in a manner that can certainly be construed as demeaning to women in a professional environment ("nice ass," and "you've got a nice rack" are two choice examples). Although No. 37 does not allege that these comments were directed at her, she does assert that the IPA' s CFO urged her to dress in a fashion that would "show what God gave" her, and that he even went so far as to suggest that her professional success was contingent on whether she did so ("You know.if you dressed like that more often you' d get that raise and promotion you were looking for. Otherwise, you' re going to end up staying here forever.") As the court noted with reference to the claim of No. 17 (who alleges that her supervisor told her, in a sexually suggestive manner, that she would have to do "certain things" in order to advance at IPA), pressure by an employee' s supervisor to engage in sex, or comments that can be construed as a threat of negative professional consequences unless the employee agrees to sex, can support a hostile environment claim where the employee also witnesses workplace scenes that reinforce the message that women who engage in sexual activity with their supervisors are successful at the company, while those who do not are not. No. 37 does not claim to have been pressured for sex, but she does allege that she was pressured to dress more provocatively. Meanwhile, No. 37 heard Steinberg comment to a female co-worker, "glad you' re showing a little more today," and she heard Rich Lubicz make comments about her co-workers' bodies up to ten times a day over the course of months. In this context, a jury could find that No. 37 reasonably believed that her professional success was indeed dependent upon how much of her own body she exposed to her male colleagues, and that the resulting pressure on her constructively changed the terms and conditions of her employment.
For the foregoing reasons, IPA's motion as to Claimant No. 37 is denied.
Claimant No. 39 worked as an outside sales consultant for IPA from January 2001 to February 2001. No. 39 spent the first three-and-a-half days of her employment at an off-site training class, which was held at a hotel where trainees apparently spent the night in between the daytime training sessions. No. 39 bases her hostile environment claim on the conduct of IPA employees during the training. Specifically, No. 39 alleges that: Richard Gottlieb, the IPA training instructor, routinely called her "princess" and asked her to make and hand out photocopies. Gottlieb did not ask any of the other trainees (which group included five women and thirty men), to make photocopies. Gottlieb told No. 39 that she had made the copies well, to which No. 39 responded, "[y]ou' d be surprised what I can do well." At this, Gottlieb allegedly looked No. 39 up and down and said, "I bet you can." No. 39 also alleges that Gottlieb made sexual jokes and lewd comments, that he referred to another female trainee as "Boom boom," and that he "talked down" to the women in the training, rather than treat them in a businesslike fashion. Gottlieb also eyed the women in the training up and down, touched their arms, and rubbed their backs as they left the room. No. 39 does not allege, however, that she herself was subjected to any unwelcome physical contact by Gottlieb. At the end of the training class, Gottlieb announced that there would be a graduation party, and that the women in the class would "get some" because there would be more men that women.
One night during the training session, a male trainee called No. 39 on her hotel phone, asked her for a drink, and told her he was going to leave his wife for her. No. 39 declined the invitation, but at the graduation party, the same trainee rubbed No. 39' s back and shoulders and told her he was a good kisser. Also at the graduation party, another male trainee offered No. 39 a drink. No. 39 turned down the offer, but he ordered the drink anyway and appeared angry when she declined to drink it. No. 39 claims she was "very scared" that the trainee who had bought the drink would accost her or "do something" when she left the bar, so No. 39 did not want to leave alone. Finally, a third male trainee tried to give No. 39 his room key at the graduation party and told her his room number in case she got "lonely."
Taken together, and in the most favorable light to EEOC, these allegations are insufficient to allow a reasonable jury to conclude that No. 39 was subjected to conduct so severe or pervasive during her tenure at IPA that her environment could be considered objectively hostile. Cognizant that No. 39 alleges no offensive conduct in any but the first three-and-a-half days of her month-long employment, EEOC argues that the objectionable conduct was pervasive during that initial period. Of course, even one instance of misconduct can be considered "pervasive" if the control period is short enough. As noted above, the reason sex-based harassment must be "severe or pervasive" to sustain a hostile environment claim under Title VII is that a violation of the statute occurs only when the challenged conduct constructively alters the terms or conditions of the victim's employment. See Burlington Indus., Inc., v. Ellerth, 524 U.S. 742, 752 (1998). In this light, it is clear that an aggrieved worker cannot manufacture pervasiveness simply by parsing her employment into byte sized periods and alleging that one of those periods was "pervaded" with misconduct. Even assuming such allegations were true, the aggrieved worker in most cases simply would not have demonstrated that the terms or conditions of her employment were effectively altered as a consequence.
This is not to say, of course, that any claim must fail unless it alleges a constant barrage of misconduct throughout a worker' s employment. As the court noted above, even a single instance of sex-based harassment can be actionable, provided it is sufficiently severe. The trouble with No. 39' s claim is that it alleges conduct that is neither severe nor pervasive enough (when considered against the full term of her employment) to have constructively altered the terms or conditions of her employment. Gottlieb's calling her "princess" did not have that effect, see Woodford v. Federal Express Corp., No. Civ. 02-1116, 2004 WL 234396 at *7 (D. Minn., Jan. 21, 2004) (Tunheim, J.) (co-worker' s use of nickname "princess" was "annoying and inappropriate" but not sexual, and amounted to "simple teasing"); see also Figueroa v. New York City Health and Hospitals Corp., No. 03 Civ. 9589, 2007 WL 2274253 at *10 (S.D.N.Y., Aug. 7, 2007) (Buchwald, MJ.) (calling plaintiff "Miss Princess" not actionable harassment), nor did his ambiguous reply to her equally ambiguous remark, "[y]ou' d be surprised what else I'm good at." Even assuming that the nickname "Boom boom" was tinged with sexual innuendo, No. 39 was neither the direct nor the indirect target of this name, and any effect it may have had on her is remote. See Yuknis v. First Student, 481 F.3d 552, 555 (7th Cir. 2007). And to the extent No. 39 was singled out during the training to perform the administrative task of photocopying on the basis of her gender, and that Gottlieb "talked down" to the women in the class (whatever that may mean), there is simply no indication that this conduct materially affected No. 39' s work conditions or environment as a whole.
No. 39' s remaining allegations are equally insufficient. As discussed elsewhere, unwelcome physical contact that is neither threatening, nor ongoing, nor sexually humiliating is generally too mild to support a claim. See Adusumilli v. City of Chicago, 164 F.3d, 353, 362 (7th Cir. 1998). No. 39' s various invitations for drinks and late-night visits, while perhaps unwelcome, were only marginally related to her working environment, having occurred after hours during the training period, and do not appear to have had any ongoing effect on her working conditions.
For these reasons, IPA's motion as to Claimant No. ...