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. 4, 9, 10, 14, 18, 19, 23, 27, 34, 40, 41, 48, 62, 68, 76, 81, 85, 86, 90, 92, 97, 115, 123, 129, 145, 146, 152, 155, 161, 174, 179, 183, and 190 in this class action suit brought by the Equal Employment Opportunity Commission (the "EEOC"). This memorandum opinion and order picks up where the court' s two previous summary judgment decisions left off. See E.E.O.C. v. Int'l Profit Associates, Inc., No. 1 C 4427, 2008 WL 4876860 at *1 (N.D. Ill. 2008, July 14, 2008) ("IPA SJ-I") and EEOC v. Int' l Profit Associates, Inc., No. 01 C 4427, 2009 WL 1956932 at (July 7, 2009) ("IPA SJ-II"). Because the procedural posture, background facts, and governing legal standards were discussed in detail in those opinions, this opinion incorporates those portions of the earlier decisions and proceeds directly to the disposition of the individual motions. For the reasons set forth below, the motions are resolved as follows.
Claimant No. 4 worked for IPA for shortly less than three months, from April to July of 2000. During that time, she claims to have been subjected to comments such as "nice ass" on a near-daily basis, and comments about her legs ("look at those legs") multiple times a week. She alleges that upwards of twenty men made comments like these, including both colleagues in her department and male IPA employees she did not know. In addition, male employees regularly whistled at and ogled her when she walked past. No. 4 states that she would glare at the men she did not know to communicate that she did not appreciate these behaviors, and that she would tell the men she did know to stop looking at her like that.
No. 4 recalls unwelcome behavior by three male employees in particular. On one occasion, No. 4 saw Shayne Wetherall, who led the department in which she worked, pull down his pants and expose his buttocks to the department' s female secretary, in view of eight to ten people. Wetherall also repeatedly looked No. 4 up and down, made comments about her buttocks and breasts, and tried to look down her blouse. No. 4 states that she complained to Wetherall about his behavior and comments. She also recalls similar conduct by a colleague, Jim Macelli, who sat next to her. In addition, Macelli asked No. 4 on two or three occasions to go out with him and have sex. Macelli also asked her six to eight times over a several week period whether she would let him take pictures of her to post on a pornographic website. No. 4 declined all of these invitations. Finally, No. 4 asserts that a male individual whose name she does not recall, but who worked at IPA as a bill collector, would stand over her, without any business reason to be near her, and peer down her blouse. This same individual also asked No. 4 explicitly whether she was wearing panties and what kind. He also asked her out after work, and because he was married, No. 4 interpreted his invitation as a request for sex. No. 4 also testified that she saw male employees at IPA slap the buttocks of female employees, although she does not know the names of these employees.
The summary above is not exhaustive of No. 4' s allegations, but it suffices to give the flavor of her claim, and, more to the point, to demonstrate why her claim withstands summary judgment.
IPA asserts that No. 4' s allegations describe conduct that is insufficiently severe or pervasive as a matter of law.*fn1 This argument fails in view of the summary of conduct noted above. As the court previously held with respect to Claimant No. 108, for example, sexual harassment need not be both severe and pervasive to be actionable, Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999), and a reasonable jury could find that in the less-than-three-month period in which No. 4 was employed by IPA, multiple overt sexual solicitations, coupled with daily commentary by numerous male employees-including No. 4' s boss-about No. 4' s body, rendered her workplace objectively hostile. IPA' s motion for summary judgment as to No. 4 is denied. Claimant No. 9 Claimant No. 9 worked in the inside sales department at IPA from June 8, 2000 to July 21, 2000. Tony Jones was the head of the department, and No. 9' s direct supervisor was Scott Hanson. No. 9 claims that both of these men told her repeatedly that she had "nice legs" or a "nice ass." Hanson would comment on her legs while eyeing her up and down. Other male colleagues also commented on No. 9' s legs or whistled at her. No. 9 states that she was subjected to this conduct on a daily basis.
In addition, No. 9 claims that Scott Hanson touched her on multiple occasions. Three or four times, Hanson told No. 9, "ooh, you' re tense" and rubbed her shoulders, touching down to the tops of her breasts where her bra was. On these occasions, No. 9 would pull away immediately, but Hanson continued to touch her. At some point during No. 9' s short tenure at IPA, Hanson moved his workspace next to hers. Thereafter, on three occasions, while No. 9 and Hanson were seated in their chairs, Hanson pulled No. 9' s chair close to him, so that the two were facing each other, with her legs between his, close to his groin. Hanson then rubbed No. 9' s thighs and asked her out for drinks or dinner. The first time it happened, No. 9 said, "no, Scott. I'm engaged. You' re engaged.
What are you doing?" Hanson replied that although they were both engaged, they belonged together. No. 9 quit her job on the day Hanson rubbed her thighs for the third time.
IPA argues that this conduct is insufficiently severe or pervasive as a matter of law. The court disagrees. A jury could find that daily comments about No. 9' s body, whistles, and at least six separate instances of unwanted touching by No. 9' s supervisor*fn2 in her less than two months of employment is sufficiently severe or pervasive to render her workplace objectively hostile. IPA' s citation to Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir. 1993), is inapposite, at least on the basis that in that case, only one male employee was alleged to have engaged in unwelcome conduct. No. 9, by contrast, alleges that both Jones and Hanson harassed her, and further states that she was exposed to daily comments about her body by other male coworkers as well. IPA's invocation of Adusumilli v. City of Chicago, 164 F.3d 353, 357-58 (7th Cir. 1998), is likewise unavailing, as that case did not involve repeated touching of the plaintiff's intimate body parts by her supervisor, coupled with invitations to go out with him after work.
For the foregoing reasons, IPA's motion for summary judgment of Claimant No. 9' s claim is denied.
Claimant No. 10 worked as an administrative assistant at IPA from September 14, 1999 to January 7, 2000. No. 10 worked in the mergers and acquisitions department, and her supervisor for the duration of her employment was Scott Wood. No. 10 makes the following allegations in support of her claim:
On one occasion shortly before No. 10 quit her job, she witnessed Tony Jones, the director of the inside sales department, grab a female employee and push her backwards over a desk, then lift his leg over her and simulate having sex with her. No. 10 saw the woman try to push Jones off of her, screaming, "get the hell off me." Jones then pulled the woman from the desk onto the floor, where he kneeled on top of her and further simulated sex, while the woman continued to scream at him and try to push him off. No. 10 described the incident as follows: "Tony had grabbed the girl, and she was by a desk, and pushed her on the desk and pretty much humped her as a dog would go to the bathroom, and then pulled her down to the floor and as she was screaming, he jumped on her and started humping her again."
On another occasion, as No. 10 was walking by a male manager' s office, she saw a female employee straddling the manager' s lap and putting eye drops in his eyes. No. 10 heard a lot of giggling as this was going on.
No. 10 claims that in the last month of her employment at IPA, Richard Gottlieb, whose position she did not know, offered her a promotion with a pay increase to become his administrative assistant in a new department that was being created. At the time, No. 10 had spoken to Gottlieb on only a handful of occasions, primarily while the two were outside smoking cigarettes. Over the course of these conversations, Gottlieb explained that he had received a promotion at IPA, and he asked No. 10 about her position and professional background. One day, No. 10 encountered Gottlieb in the reception area near Gottlieb's office, where No. 10 was speaking to Kathy, the receptionist. At the time, Kathy was putting on mascara, and Gottlieb asked No. 10, who was not wearing makeup, why she didn' t "paint [her] face." No. 10 found this comment "weird," but she "didn' t take [it] seriously," "let it go," and "didn' t think about it again." Later that same day, Gottlieb asked No. 10 to bring in her resume so that he could consider her for a position as his assistant. Neither No. 10 nor Gottlieb mentioned the face-painting comment of earlier that day. No. 10 states that she gave her resume to Gottlieb the next day, and that shortly thereafter, he offered her a job as his assistant.
The following day, No. 10 met with Shelle Bareck. According to No. 10' s testimony, Bareck confirmed that No. 10 would begin working for Gottlieb and would receive a pay increase, but explained that No. 10 had to stay in her current position for two weeks until a replacement could be found. No. 10 spoke to Wood about her transfer later that day. The next day, although No. 10 was still working for Scott Wood, she attended a brainstorming meeting of people who were going to be on Gottlieb's team in the new department. No. 10 claims that later that day, as she was making copies at the photocopier, Gottlieb "took out his wallet, threw all his cash out, and said, what the fuck do I have to do to get you to paint your face and shorten your dress?" No. 10 says she was "stunned" by Gottlieb' s conduct, and that she reported it to Bareck the same day. She further testified that as a result of Gottlieb' s comment, she didn' t want the position as his assistant anymore.
The following day, Bareck called No. 10 to her office and said told her that she (Bareck) had spoken to John Burgess, and that they had decided that No. 10 should continue working in the mergers and acquisitions department, rather than become Gottlieb's assistant. No. 10 felt as though she had been slapped on the wrists for reporting Gottlieb. The next time she encountered Gottlieb, he told her that she had "made a very big mistake" and that she was "messing with the wrong person." For the remainder of No. 10' s employment at IPA, Gottlieb did not speak to her but would glare at her in a way that made her feel uncomfortable. About a month later, No. 10 quit her job.
IPA argues that No. 10' s allegations do not amount to severe or pervasive harassment, and that the company took prompt, remedial action in any event. IPA also disputes that No. 10 was ever offered a promotion. IPA argues that Gottlieb had no authority to extend such an offer and disputes No. 10' s assertion that Bareck made the offer on the ground that it is based on inadmissible hearsay. IPA also contends that to the extent No. 10' s claim is based on a retaliation theory, that theory was not advanced in EEOC' s complaint and may not be asserted now.
To begin with, the court agrees that because the EEOC did not assert a retaliation claim on behalf of class members, it may not now seek damages for class members based on that theory of liability. Cheek v. Peabody Coal Co., 97 F.3d 200, 202-03 (7th Cir. 1996). It does not appear, however, that the EEOC is pursuing No. 10' s claim based on a retaliation theory.*fn3 Although EEOC's argument is less than crystal-clear, the court understands the EEOC's position to be that IPA's alleged change of course regarding No. 10' s promotion is not an independent Title VII violation, but instead rebuts IPA' s argument that it took prompt remedial action in response to No. 10' s complaint about Gottlieb'sharassment, since she was worse off as a result of that action. In other words, the EEOC claims not that IPA violated Title VII because it retaliated against No. 10 for reporting Gottlieb's conduct, but rather that IPA cannot escape liability for No. 10' s hostile environment claim on the basis that it took effective action in response to her complaint.
It is indeed well settled that "[a] remedial measure that makes the victim of sexual harassment worse off is ineffective per se," regardless of whether the measure puts an end to the alleged harassment. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 811 (7th Cir. 2000) (quoting Guess v. Bethlehem Steel Corp., 913 F.2d 463, 465 (7th Cir. 1990), and citing cases). IPA insists that No. 10 was not worse off, since there is no admissible evidence to suggest that No. 10 was slated for any promotion in the first place. Although the court is not entirely persuaded by this argument,*fn4 it need not resolve the issue. As the court understands the parties' respective positions, the appropriateness of IPA' s response is relevant to IPA's defense that it cannot be held liable for Gottlieb' s conduct. See Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1048 (7th Cir. 2000) ("In hostile work environment cases, the employer can avoid liability for its employees' harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring."). It does not, however, bear upon the independent question of whether No. 10 was subjected to a hostile environment.
No. 10' s testimony, taken as a whole, supports IPA's position that the three episodes that No. 10 asserts (or four, if Gottlieb' s two face-painting comments are counted separately), are isolated occurrences. Nevertheless, the court is unwilling to find, as a matter of law, that taken together, they are so benign as to fall short of actionable harassment. No. 10' s description of Tony Jones's sexual assault of a female coworker depicts not only a sexually suggestive pantomime but a deliberately degrading one. The remaining episodes, including the money-throwing outburst by Gottlieb (which a reasonable woman might indeed find humiliating), arguably reinforced not only a "sexualized atmosphere" at IPA, as EEOC asserts, but also No. 10' s impression that female employees-herself included-could be degraded with impunity at the workplace. Under these circumstances, No. 10 is entitled to have a jury decide whether her working environment was subjectively and objectively hostile. IPA's motion to dismiss her claim is denied.
EEOC does not oppose IPA's motion for summary judgment of Claimant No. 14' s claim. Accordingly, the motion is granted.
Claimant No. 18 was a business coordinator at IPA from September of 2000 to August of 2001. Her claim is based on the following allegations:
For the last two months of No. 18' s tenure at IPA, David Soskin was her zone manager. During that period, Soskin once responded to No. 18' s comment that she planned to leave work at the end of her scheduled shift with the question, "what are you going to do, go home and.?" while making a gesture of "tweaking" his nipples. No. 18 understood this to imply that she was going home to masturbate. In a similar vein, No. 18 claims that Soskin said to No. 18' s son Jeremy, who also worked as a business coordinator in Soskin's zone, "Jeremy, you jack off in front of the computer, don' t you?"
Jeremy replied that he did not, to which Soskin retorted, "Well, I know for a fact that your mom does." No. 18 states that other people heard this exchange.
No. 18 also recalls hearing Soskin use vulgar language while he was on the phone. Specifically, she heard him shout, "I don' t care what you do. I just want a fucking sale, and I will hire a fucking whore to lick your asshole out."
On two separate occasions, sales representatives with whom No. 18 worked made sexually suggestive comments to her over the phone. In the first instance, Dante DeFabio told her "a sale is better than an orgasm." No. 18 testified that she did not respond to this comment. On the second occasion, Sam Jones asked her, "do you want to get laid?" No. 18 does not recall whether she responded to that comment.
No. 18 also claims that on one occasion, she saw a female employee massage a male employee's neck, and that the female employee "dragged her breasts up and down against his back." No. 18 recalls saying, "that' s disgusting."No. 18 further claims that Keith Link was "always" putting his hands on female employees'"rear ends and on their shoulders."
No. 18 recounts one instance in which she witnessed an argument between zone manager Dmitri Kotsakis and a female employee named Gloria, with whom No. 18 believes Kotsakis may have been involved romantically. During the argument, Kotsakis screamed that Gloria was a "fucking cunt."
Finally, No. 18 testified about two instances involving violence against a particular female IPA employee. No. 18 states that she once ran into the victim in the ladies'room at IPA, and that the woman cried and told her about how a male IPA employee named Victor and two or three of Victor' s friends had beaten her with a baseball bat and attempted to rape her after the female employee had agreed to give them a ride. No. 18 states she saw scratches, bruises, and a lump the size of an orange on the woman' s body and head, which the woman told her were the result of the attack. No. 18 heard from "everyone" at work that the same female employee was, on another occasion, struck with a manufacturing guide by a male IPA employee in the course of an argument at work, and that the female employee left IPA and never returned. No. 18 did not herself witness the altercation.
No. 18 also describes other conduct that made her scared and caused her to leave work on one occasion. In particular, she described a fistfight between David Soskin and a male employee named Nick, and an episode in which Soskin slammed a plastic clipboard down, causing it to shatter. No. 18 was sufficiently upset by the fistfight that she spoke to Shelle Bareck about it, went home early that day (a Thursday), and did not return to work until the following Monday. She also stated that she tried to steer clear of Soskin after the shattered clipboard incident because she was fearful of what he might do if he got angry. In her deposition, No. 18 stated that she did not believe these instances constituted sexual harassment, but that they illustrated the nature of IPA' s work environment.
IPA argues that No. 18' s allegations do not describe severe or pervasive harassment, and that the harassment she describes was not based on sex. The court is not convinced on either front. First, IPA makes much of the fact that Soskin' s comments about masturbation were made to both women and men. But IPA overlooks that the only male employee identified as a target of such comments is No. 18' s son, and that the comment to him was largely about No. 18 masturbating. A reasonable fact finder could interpret Soskin's masturbation comments not as gender-neutral off-color jokes, but instead as deliberate attempts to humiliate No. 18 sexually in front of coworkers, including her son, and that she was singled out for the comments based on her sex.
Next, it is not clear that the totality of No. 18' s allegations describe conduct so benign as to fall within Title VII' s safe harbor. It is true that the remaining remarks directed at her (Dante DeFabio's comment comparing a sale to an orgasm and Sam Jones' s question "do you want to get laid?") are, indeed, fairly tepid. But the court is mindful that they occurred in a working environment punctuated by the loud use of sexually degrading epithets for women, and in which at least one manager was "always putting his hands all over" female employees.
Finally, IPA conspicuously omits from its opening brief any reference to No. 18' s testimony regarding the injuries she claims a coworker showed her in the ladies' IPA, which the coworker attributed to a sexual assault by a male IPA employee. IPA objects to the court' s consideration of this evidence on the ground that it is based on inadmissible hearsay. Nevertheless, IPA addresses the evidence obliquely in its reply, equating it with the "uncomfortable [workplace] rumors" that were held non-actionable in McDonnell v. Cisneros, No. 94 C 4440, 1995 WL 110131 (N.D. Ill. 1995). IPA' s position is flawed in several respects. First, IPA' s blanket hearsay objection poses no obstacle to the court' s consideration of the portion of No. 18' s testimony that is based on personal knowledge. No. 18 claims to have seen her colleague's bruises, scratches, and bumps first-hand, and IPA has asserted no basis for excluding No. 18' s testimony about what she saw. Second, it is not entirely clear that even the portion of testimony that is based on what No. 18' s colleague allegedly told her-that the injuries were caused by a male IPA employee during an attempted rape-is inadmissible hearsay: the court assumes that the statement is not offered for its truth (i.e., whether the named IPA employee in fact assaulted No. 18' s colleague), but instead to support No. 18' s subjective perception that IPA's workplace was hostile towards women.
In addition to attenuating IPA' s evidentiary objection, a focus on the impact of the ladies'room encounter on No. 18 underscores the analytical distinction between her claim and the ones asserted in McDonnell, where the plaintiffs relied on "two anonymous room at letters and the rumors circulating throughout the workplace concerning their sexual misconduct" to support their claim of a hostile environment. Id. As the Seventh Circuit later explained in Yuknis v. First Student, 481 F.3d 552 (7th Cir. 2007), the reason claims "based purely on hearsay or rumor" are not generally actionable is that the offensive acts are too indirect or remote, from the perspective of the claimant, to rise to the level of actionable harassment. Here, however, what IPA cavalierly calls the "shock value" of No. 18' s "sensational" allegations (and the court does not hesitate to conclude that a reasonable woman could indeed find her allegations shocking) is that she claims to have witnessed, first-hand, what she believed was evidence of a violent sexual assault of a female coworker by a male coworker.*fn5 In this light, it is clear that No. 18' s claim is not "based purely on hearsay or rumor." Yuknis, 481 F.3d at 555-56.
No. 18 may or may not ultimately persuade a jury that her own working environment was objectively hostile, but IPA has not demonstrated that it was not so as a matter of law. Accordingly, IPA's motion for summary judgment of her claim is denied. Claimant No. 19
Claimant No. 19 is one of two original complainants in this case. EEOC and IPA have each submitted copious statements of fact in support of their respective positions on summary judgment. Certain facts are indeed undisputed, and they are discussed below. Nevertheless, the parties offer vastly differing accounts of: No. 19' s relationship with IPA's managing director John Burgess; the quality (and quantity) of No. 19' s work for IPA; No. 19' s entitlement to commissions she alleges were due and unpaid; the manner in which No. 19 was (or was not) accorded certain benefits at IPA; and the circumstances surrounding her termination.
The parties agree that: No. 19 began her employment at IPA on July 5, 1994 and worked as a business coordinator until August 14, 1994. She then worked in the quality control department from August 15, 1994, to August 29, 1994, in the accounting department from August 30, 1994, to September 14, 1997, as a business analyst from September 15, 1997, to November 30, 1997, as an outside sales representative from December 1, 1997, to January 11, 1998, and as an inside sales representative from January 12, 1998 to March 20, 1998, when she was terminated. No. 19 claims that she was summarily fired by John Burgess shortly after refusing his sexual advances. IPA asserts that Valerie Ramsdell, No. 19' s manager in her last position at IPA, terminated No. 19 because of poor performance and habitual tardiness.
The parties agree that No. 19 had sexual intercourse with John Burgess on several occasions. IPA claims that the relationship between Burgess and No. 19 was consensual, and that No. 19 welcomed their sexual intercourse.*fn6 No. 19 disputes that her sexual relationship with Burgess was either welcome or consensual. She claims that John Burgess harassed her continuously from the time she began working in the accounting department. He made comments such as, "lean over so I can see your tits," and "you have nice ankles; you must give good blowjobs."*fn7 No. 19 claims that Burgess pressured her to go out with him for a year, during which time she refused his advances, and that he touched her inappropriately on six or seven occasions while she was in his office. For example, she claims that on one occasion, he backed her against a wall, grabbed his crotch, and tried to kiss her on the mouth and touch her breasts. She alleges that on another occasion, Burgess grabbed No. 19' s arm and tried to pull her into a side room of his office and kiss her. She claims that Burgess also insinuated, in front of other IPA employees, that he and No. 19 had a sexual relationship by making suggestive comments such as, "yea, she's really good" and "what time are we meeting tonight?" even though at the time, No. 19 had consistently refused his advances. She claims that Burgess became "obsessive," writing her love letters, paging her to his office repeatedly, and calling her fifteen to twenty times a day, demanding to know why she would not go out with him. Burgess himself admits that he became "infatuated" with No. 19.
No. 19 states that she ultimately agreed to have sexual intercourse with Burgess to protect her job because she feared Burgess would retaliate against her inside and outside of work if she did not give into his advances. No. 19 claims that Burgess "frequently made suggestions about keeping [her] job," and that she was afraid she would be demoted if she did not agree to go out with him. During the period in which Burgess was harassing her, No. 19 was involved in a child custody battle with her ex-husband. She claims that she spoke to Burgess about her child custody case, and that on several occasions, she sought advances from the company to pay her attorney. No. 19 alleges that Burgess approved one such request, but denied another, telling her, "you don' t need an advance if you see me."No. 19 feared that if she did not sleep with Burgess, he might retaliate by making false statements to her ex-husband that would negatively affect her ability to win custody of her child. No. 19 states that she did not trust Burgess' s "mental stability," and that she feared he was capable of anything. No. 19 claims that she had sexual intercourse with Burgess approximately four or five times between early and late 1997, although she does not remember the specific dates.
It is undisputed that while No. 19 worked in the accounting department, she arrived at work late on "several occasions," though No. 19 claims that she had been authorized to arrive late because she was doing a good job and working a lot of hours. No. 19 acknowledges, however, that at some point during that period she received a verbal warning relating to her tardiness.
In late 1997, No. 19 asked to be transferred to a position as a business analyst, which was a position that would require her to work off-site, rather than in IPA's office. She claims that one reason she requested the transfer was to get out of the building to avoid contact with Burgess. No. 19 began working as a business analyst in September 1997. She claims that Burgess continued to harass her by regularly calling her cell phone and pressuring her to have sex with him. Burgess allegedly promised No. 19 that she could have assignments that would keep her closer to home (which was important to No. 19 because she wanted to be near her child), if she would continue having sex with him.
No. 19 then transferred successively to the outside sales department and the inside sales department. The parties dispute numerous facts relating to her tenure in these departments. IPA claims that No. 19 generally performed poorly; No. 19 claims she performed well but was not credited for the sales she made. Specifically, IPA asserts that No. 19 made no sales while working in the outside sales department, and "generated commissions for only two sales" during her employment in the inside sales department. Meanwhile, No. 19 claims that she made at least one sale each week in the outside sales department, and that she made one to two sales a week in inside sales. IPA asserts that while in inside sales, No. 19 frequently came in late, and that she did not spend as much time on the phone as required to perform well. No. 19 claims that she rarely came in late, and that she was on the phone most of each day.
No. 19 also states that while she worked in the outside sales department, she and a guest were invited on a weekend trip to Las Vegas sponsored by IPA. She claims that John Burgess asked her who she planned to invite as her guest, and she replied that she would be bringing her boyfriend. Within days of this conversation with Burgess, No. 19 received a letter in the mail from Shelle Bareck, telling her she had been "excluded" from the Las Vegas trip because IPA "was unable to procure any additional lodging in Las Vegas" and was not "capable of increasing the size if [its] banquet facilities."*fn8 No. 19 states that at the time, she called Bareck to find out why she had been "uninvited" to Las Vegas, and that Bareck replied, "you know how John is." No. 19 is unaware of any other IPA employee who was "uninvited" to Las Vegas.
No. 19 alleges that in March of 1998, she complained to Gregg Steinberg that she had not been paid commissions that were due to her. She claims that she showed Steinberg a report indicating that No. 19 was owed $4000, but that Steinberg just laughed at her.*fn9 The following day, John Burgess called No. 19 into his office. In the presence of four other department heads, Burgess shouted at No. 19, "You' re fucking fired. You have two minutes to get out of this building." IPA asserts, however, that the decision to fire No. 19 was taken by Valerie Ramsdell and was based on No. 19' s poor performance. No. 19 claims that she was fired because she had stopped giving in to John Burgess's pressure for sex.
The foregoing summary is not intended to be exhaustive of the allegations No. 19 makes in support of her claim. They suffice, however, for the resolution of the present motion.
IPA asserts that No. 19' s claim cannot withstand summary judgment because she cannot demonstrate that she was subjected to a "tangible" adverse employment action, and because her hostile environment claim is both time-barred and based upon conduct that is insufficiently severe or pervasive as a matter of law.
The court begins by noting the Seventh Circuit's observations in Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 753-54 (7th Cir. 2006), one of the cases IPA now cites:
[S]ummary judgment briefs that present multiple versions of the facts arouse our attention at the outset because under the Federal Rules of Civil Procedure, a judge may grant summary judgment for a moving party only where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. [Citations omitted]. Because our only task upon review of a summary judgment motion is to determine "whether there is any material dispute of fact that requires a trial," (Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994)), multiple versions of the facts increase the chances that at least one of those conflicting facts will be material to the outcome of the case.
Id. As the court observed at the outset, the parties have offered extensive factual statements that, while overlapping to some degree, present starkly differing versions of events that marked No. 19' s employment. Having reviewed the "tangled web of facts" at issue, id. at 753, the court concludes that No. 19 is entitled to have a jury adjudicate her claims.
First, No. 19' s hostile environment claim is not time-barred. IPA acknowledges the continuing violation doctrine set forth in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002), under which a plaintiff may bring a hostile environment claim "so long as an act contributing to that hostile environment takes place within the statutory time period," but argues that No. 19' s claim is barred because No. 19 last had sexual relations with Burgess in July of 1997 (a fact that No. 19 disputes),*fn10 and because No. 19' s allegations with respect to incidents that occurred after November 25, 1997 (the relevant cutoff date in this action) are unrelated to her allegations of a hostile environment. IPA' s argument is meritless. To begin with, when No. 19 last had sexual relations with Burgess is irrelevant in view of her allegation that Burgess continued to harass her long after the last time the two had sex. IPA argues that the court should disregard this allegation because it was first made in a declaration accompanying the EEOC' s response to IPA' s motion. The basis for IPA's position is that the declaration contradicts No 19' s deposition testimony. IPA relies on Pourghoraishi v. Flying J, Inc., 449 F.3d 751, 759 (7th Cir. 2006), in which the court held that a plaintiff cannot create an issue of material fact "by submitting an affidavit that contradicts an earlier deposition."
Having reviewed No. 19' s deposition in its entirety, however,*fn11 the court concludes that Pourghoraishi is inapposite. In that case, which involved a claim of racial discrimination, the plaintiff stated in his deposition that he had no physical attributes that made him appear to belong to a racial minority. In his legal memorandum, however, the plaintiff argued that "any reasonably aware and knowledgeable person would have identified [the plaintiff] as Middle Eastern, both by his appearance and speech," and cited to an affidavit by plaintiff's lawyer. Id. at 758. The court disregarded the affidavit because it "directly conflict[ed]" with the plaintiff's own testimony. Id.
In this case, there is no such direct conflict. While it is true that, under IPA' s questioning, No. 19 testified primarily (though not exclusively) to Burgess' s conduct prior to November 25, 1997, she neither affirmatively stated that his unwelcome advances stopped after that time, nor stated that the pre-November 25, 1997, conduct about which she primarily testified represented the entirety of the harassment she experienced by Burgess. The fact that IPA focused its questioning on the period of No. 19' s employment preceding her sexual relationship with Burgess is consistent with IPA's theory of her claim, which is that it must be limited to Burgess' s conduct prior to the time he and No. 19 began a sexual relationship.*fn12 It is not at all clear that IPA did not make a tactical decision not to develop No. 19' s testimony relating to the period after her sexual relationship with John Burgess ended, and the court presumes that if such testimony were developed, it would support her claim. See IPA SJ-II at *56 n. 16 (counsel's failure to develop testimony about harassment claimant asserts allows for presumption, on summary judgment, that additional testimony would have supported her claim). In any event, the court finds no direct conflict between her deposition testimony and her later declaration. Accordingly, Pourghoraishi does not control.
IPA also argues that the statements in No. 19' s declaration are too vague to support her claim. But No. 19' s statement that during the limitations period, Burgess continued to pressure her to have sex with him by calling her regularly and offering her more desirable work conditions (specifically, "smaller jobs and jobs closer to home") if she would agree to have sex with him are substantially more precise than the ones the court found too vague in the case upon which IPA relies, Spencer v. City of Elkhart, 1995 WL 358819 at *29 (N.D. Ind. 1995). In that case, the court rejected "vague assertions that.' some of [the plaintiff's] supervising officers made unwelcomed sexual advances toward [her] and engaged in verbal and physical conduct of a sexual nature in [her] presence.'" While the allegations cited in Spencer are devoid of any meaningful detail, the same cannot be said of No. 19' s statements in her declaration. Moreover, the court sees no reason to consider No. 19' s declaration in isolation-indeed, IPA's own position appears to emphasize that the declaration cannot be analyzed independently of No. 19's deposition testimony. Viewed in the light of her testimony as a whole, the statements in No. 19' s declaration are not too vague to support her claim.
Next, IPA' s assertion that No. 19' s allegations relating to conduct after November 25, 1997, are unrelated to facts contributing to her hostile environment claim simply overlooks certain of No. 19' s allegations. IPA focuses on the allegations that No. 19 was denied commissions and advances in early 1998, then argues that these allegations have nothing to do with John Burgess, whose conduct is at the heart of No. 19' s hostile environment claim. This argument falls, however, with the court' s conclusion above that No. 19' s testimony amounts to adequate evidence that Burgess continued to harass her, calling her multiple times a day and pressuring her to have sex, throughout her stint as a business analyst (which ended on November 30, 1997, within the limitations period) and into her tenure in the outside sales department.
Based on the foregoing, the court concludes that No. 19' s claim is not time- barred, and that it may consider "the entire scope of [her] hostile work environment claim, including behavior alleged outside the statutory time period," National Railroad, 536 U.S. at 105. Having made that determination, there is no need to linger on IPA's argument that the conduct No. 19 alleges is insufficiently severe or pervasive as a matter of law. IPA does not even argue that, if Burgess' s conduct over the course of No. 19' s entire period of employment is considered, the harassment she alleges is not severe or pervasive. The court has no trouble concluding that a reasonable jury could find in No. 19' s favor on that issue.
Less clear is whether No. 19' s claim of sex discrimination based on one or more actionable adverse employment actions can survive summary judgment. The EEOC offers merely seven lines of text in response to IPA' s argument that No. 19 has failed to raise a triable issue of fact on this question. In a cursory fashion, EEOC insists that the evidence is sufficient to demonstrate a material dispute as to whether No. 19 was terminated, denied commissions, and/or "uninvited" on IPA' s Las Vegas weekend as a result of sex-based discrimination. IPA replies that: 1) No. 19 was terminated not because of sex discrimination but because she was a poor performer; 2) the undisputed facts prove that No. 19 was not denied any commissions to which she was entitled; and 3) because No. 19 had no entitlement to the Las Vegas trip, her exclusion from the trip is not actionable as a matter of law.
Although neither of the parties makes reference to the standards that are by now familiar in the Title VII context, No. 19 can ultimately prove her adverse employment action claim in one of two ways: the direct method or the indirect method. Raymond v. Ameritech Corp., 442 F.3d 600 (7th Cir. 2006). The court begins with her claim of unlawful termination, since there is no question that termination is a materially adverse action. Under the direct method of proof, No. 19 need not come forward with an admission of discriminatory animus to survive summary judgment, provided that she can construct "a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination by the decisionmaker." Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir. 2006) (quoting Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 504 (7th Cir. 2004). Despite IPA's protestations to the contrary, the court finds that No. 19 has minimally met that burden here. IPA argues that in order to conclude that No. 19 was terminated because of her sex, a jury would have to "ignore all of the events leading up to her termination." Not so. It is IPA who ignores the events from which a jury could reasonably conclude that No. 19' s termination was the ultimate result of her refusal to continue a sexual relationship with John Burgess.
As the court understands the EEOC's theory of No. 19' s case, John Burgess exercised an enormous amount of discretionary control over the terms and conditions of No. 19' s employment, and that he exercised his discretion in a way that rewarded her for agreeing to have sex with him and punished her for rebuffing him. At her deposition, No. 19 gave specific examples of Burgess' s discretionary control. For example, No. 19 testified that at while she worked in accounting, there was no company policy regarding when advances would be paid. Instead, "it was whenever John Burgess wanted to, whenever he felt like it, and how much he wanted to give you." No. 19' s undisputed testimony that she personally managed the advance accounts of IPA employees suggests that she can competently testify to Burgess' s exercise of discretion, at least as to how advances were awarded. In addition, No. 19 testified that Burgess told her, "you don' t need an advance if you see me," which she understood as a solicitation for sex, and that he also made suggestions about "keeping [her] job." Finally, No. 19 claims that when she complained to Shelle Bareck about Burgess' s conduct, Bareck' s responses reinforced that Burgess called the shots: when No. 19 complained about her "problems"with John Burgess,*fn13 Bareck allegedly asked her, "What do you want me to do about it? It' s John Burgess." Similarly, when No. 19 called Bareck to ask why she had been excluded from the Las Vegas trip, Bareck replied, "You know how John is."
The court concludes that these facts, taken together, are sufficient to construct a minimally "convincing mosaic"from which a jury could conclude that No. 19' s termination was the result of sex discrimination. That is, a rational jury could conclude that No. 19' s termination was motivated not by her alleged tardiness and poor performance, but rather by her refusal to continue having sex with John Burgess.*fn14
Moreover, as the Supreme Court recently observed, 42 U.S.C. § 2000e-2(m) explicitly authorizes discrimination claims under Title VII where an improper consideration was "' a motivating factor'for an adverse employment action," even though other, non-discriminatory factors may also have prompted the action. Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2349 (2009) (distinguishing the Age Discrimination in Employment Act, which requires that improper consideration play a "but-for" role in the adverse action, from Title VII, which requires only that the improper consideration be "a motivating factor.") As for No. 19' s allegations that she did not receive commissions to which she was entitled, IPA's contention that its business records "prove" that No. 19 was never denied commissions also does not support summary judgment. A jury is entitled to discredit IPA's documentary evidence and believe No. 19' s testimony that she was indeed denied commissions. See Payne v. Pauley, 337 F.3d 767, 774 n. 2 (7th Cir. 2003) (jury may credit plaintiff's testimony that she was detained by police for half an hour over dispatch records indicating police were on scene no longer than six or seven minutes).*fn15 Accordingly, IPA is not entitled to summary judgment on No. 19' s claim that she suffered one or more adverse employment actions based on her sex.*fn16
Based on the foregoing analysis, IPA's motion for summary judgment of No. 19' s claims is denied.
Ramsdell further asserts that "Mr. Burgess finds it very difficult to refuse a request for help." The evidentiary value of such statements is obviously limited.
Claimant No. 23 worked as an outside sales representative from March 15, 2000, to October 17, 2000. Throughout her employment at IPA, she worked out of her home in Lake Zurich, Illinois and rarely visited IPA headquarters in Buffalo Grove. She bases her claim of a hostile work environment on the following allegations:
In the three-and-a-half day training course at the beginning of her employment, a male trainer named Ray made comments "from time to time" about No. 23' s appearance or about sales prospects wanting to date her. Approximately a half dozen times, Ray commented that No. 23 had nice legs and said her suit was sexy. He also told her several times that he thought she was very attractive, and said "oh my goodness, look at her in her red suit." No. 23 claims that throughout the training, Ray "picked on" her, singling her out with comments such as, "if our analyst spends the whole day flirting with [No. 23] and trying to get a date with [No. 23], he' s not doing his job," and "some guys may not be paying attention if legs like [No. 23]' s are being shown." At one point, a male instructor told a story about a female executive who was "propositioned" by a sales prospect, although No. 23 could not recall the details of the story.*fn17 No. 23 also claims that words like "sexy" and "hot babe" were "thrown out" over the course of the training.
No. 23 complained about the trainer' s comments to Don Parks, her regional manager, after the training ended. She told Parks that she was unhappy about the way she had been talked to in the training, to which Parks allegedly replied, "well, look how good looking you are. Can you blame them?"*fn18 No. 23 claims that another trainee in her sales training, Ted Suss, wrote a letter complaining about how No. 23 was treated during the training. No. 23 states that after showing the letter to No. 23, Suss gave it to John Harper, the IPA employee apparently responsible for the last day of the training. In front of the class, Suss handed Harper the letter and said, "I've been very offended about what' s been going on." Harper looked embarrassed but did not respond to Suss's comment or to the letter.
No. 23 alleges that throughout her employment, Parks made comments she found inappropriate in both conference calls and one-to-one phone calls she regularly had with him. For example, she claims that on one-to-one calls, Parks said things like, "I'm going to come down there yet and take you out and we'll go out on the town and we'll have a great time," and "you' re one fine looking lady." No. 23 thought these comments, and the tone of voice in which they were made, were inappropriate because Parks was married. No. 23 claims that on conference calls, Parks said things like, "I'm going to come down, [No. 23], and see you," and "is that [No. 23] on the phone, you sexy lady." Parks allegedly made comments about taking No. 23 out more than five times, and he called her a "sexy lady" or "sexy doll" two or three times.
Finally, No. 23 alleges that her job required her to call IPA' s office "all the time" and speak to Keith Link. She claims that Link, whom she met in person on a few occasions, "continuously" made comments on the phone that she found offensive, such as calling her "doll" and "sweetheart," and saying that he would come over and stay at her house, and that he' d like to take her out.
IPA argues that No. 23' s claim is based on conduct that is insufficiently severe or pervasive as a matter of law. The court disagrees. Although the court has held that conduct alleged to have occurred only during a claimant' s initial training period is insufficient to render her overall working environment hostile,*fn19 No. 23 asserts that she was subjected to offensive comments both during training and on a regular basis throughout her employment. It is true that the tenor of the comments No. 23 asserts is less egregious than that described by certain other claimants, but the comments are not so "tepid, intermittent, or equivocal" as to fall within Title VII's "safe harbor," Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir.1998), and she is entitled to have a jury adjudicate her claim. IPA' s motion as to No. 23 is denied.
Claimant No. 27 worked as a business coordinator for approximately two months between May and July of 2001. No. 27 heard about the job through her cousin Phelycia, who began working as a business coordinator at IPA about two weeks before No. 27 did. No. 27 had several different zone managers during her employment, and she claims that she also worked under a man named Garrett, whose position she did not know, but who she believed was hierarchically superior to her immediate supervisors. No. 27 believed that Garrett was a manager at IPA, and that he had the authority to hire and fire people, since she once saw him tell a business coordinator, "go home and don't come back," after which No. 27 never saw the business coordinator again.
The first alleged incident of inappropriate conduct was when a male employee known as "Red," whom No. 27 had seen before at IPA but had never spoken to, grabbed her thigh while she was wearing a skirt and said, "ooh, you got some pretty ...