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Regina Vince v. Illinois Central School Bus

February 9, 2011


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


Before the Court is the Motion for Summary Judgment from Defendants Illinois Central School Bus, LLC and Bruce Barr (hereinafter, the "Defendants") on all nine counts of Plaintiff Regina Vince's (hereinafter, the "Plaintiff") Amended Complaint. For the reasons stated below, the Motion is granted in part and denied in part.


Defendant Bruce Barr ("Barr") started the school bus transportation company Illinois Central School Bus, LLC ("Illinois Central") in 2004. That year, Illinois Central hired Plaintiff as a contract hourly employee at $10.00 an hour. Illinois Central hired her as a full-time employee in August 2005, and increased her pay to $15.00 an hour. Plaintiff had previously worked with Barr at the school busing company First Student, Inc. Plaintiff possesses an Associate's Degree in Business Management. Her work duties at Illinois Central included setting up and administering a computer billing system for a large multi-district special education student busing contract, setting up and working on an accounting system, developing a reporting system, working on performance indicator reports, preparing contract bids, working on the company's web site, working on budgets and end-of-month reports, and working with the company's information technology. During the course of her employment at Illinois Central, Plaintiff worked at several of the company's locations, as well as from home.

The parties dispute the number of hours that Plaintiff worked in performing these duties. Defendants claim that she was expected to work eight hours a day and 40-hour weeks, and that these are the hours she generally kept. The parties do not dispute that Plaintiff never submitted a written claim to Defendants that she was entitled to overtime compensation. Plaintiff, however, claims that she worked 12-hour days, seven days a week for almost three years of her employment at Illinois Central, and that she frequently complained to Barr and other executive employees at Illinois Central about working such long hours without compensation. Defendants deny that she ever worked such hours.

Plaintiff also alleges a pattern of sexual harassment by Barr that began in 2004. Defendants deny that any sexual harassment occurred during the entirety of Plaintiff's employment at Illinois Central, and deny every specific allegation Plaintiff makes of sexually harassing conduct by Barr or any other Illinois Central employee. They also allege that Plaintiff never submitted a formal written complaint while she worked at Illinois Central about the alleged harassment. Plaintiff, on the other hand, alleges that she complained numerous times to Keona Peters ("Peters") in Human Resources about the harassment, as well as to Barr and Illinois Central Chief Financial Officer Scott Cheshareck ("Chesharek").

Plaintiff alleges that the first incident of harassment occurred one evening in 2004 at the company's Mazon, Ill., office. Barr allegedly told Plaintiff about his interest in having sexual relations with her and proceeded to push her against a window, attempt to kiss her, and touch her breasts. Plaintiff alleges she resisted this, told him to stop, and pushed Barr away. Plaintiff further alleges that after this incident, Barr engaged in a pattern of sexual harassment that included brushing his hands across her breasts and making sexual jokes, innuendoes, and remarks to her. For example, Plaintiff alleges that Barr told her that he wanted to place his penis between her breasts, gave her details about his sex life, and asked her two or three times if she wanted to have sex with him.

Illinois Central transferred Plaintiff to its Blue Island, Ill., office, where she shared an office with Barr. At the Blue Island office, Plaintiff alleges that Barr continued his sexual harassment, including an incident when he placed his hand on Plaintiff's thigh, rubbed her arms and shoulders, and pushed his chest against her back. She further alleges that one evening after she and Barr went to a festival and bar for drinks, Barr asked Plaintiff to accompany him to look at a house he was renovating. Once at the house, Plaintiff alleges that Barr pushed her up against a door, lifted up her shirt and bra, forced her hand onto his exposed penis, and propositioned her for sex. She alleges that she fought Barr off, told him to stop, and declined his proposition. She also alleges that during her time at the Blue Island office, Barr regularly made inappropriately and unwelcome comments to her about her body and her sex life.

In early 2006, Illinois Central transferred Plaintiff to its Channahon, Ill., office. Plaintiff alleges that about one month after she began working there, she worked late one night with Barr. She alleges that Barr propositioned her for sex, rubbed against her, touched her leg, and made sexually lewd comments to her. Again, she alleges that she told him to stop and rejected his advances. She alleges that around her birthday in July 2006, Barr told her that he wanted to rent a hotel room for her birthday so they could have sex. Further, she alleges that about one month later, he told her that he wanted to watch her have sex with another female employee at Illinois Central. Plaintiff also alleges that while she worked at the Channahon office, Cheshareck engaged in sexually explicit conversations with Barr in her presence, as well as intentionally brushed his forearm against her breasts while they worked on financial reports together. She allegedly told him to stop doing that, to which Cheshareck responded with laughter. Plaintiff alleges that this perpetual harassment drove her to tears, made her vomit, and contributed to an anxiety disorder.

In April or May 2007, Plaintiff accompanied Barr to Minnesota to bid on a transportation contract. In Minnesota, Plaintiff alleges that Barr asked her to go to dinner to review the bid, but rather than taking her to dinner, surprised her by taking her to a strip club. She told him that she was not comfortable there, and that she wanted to leave. They allegedly stayed at the club for about an hour, and when in the back seat of the taxi returning to their hotel, Barr grabbed Plaintiff's breasts, attempted to put his hands between her legs, and tried to kiss her on the mouth. Again, Plaintiff allegedly pushed him away and told him to stop; he eventually stopped. Once back at the hotel, Barr allegedly tried to push his way into Plaintiff's hotel room, but Plaintiff managed to push him out and lock the door. While Plaintiff did not recall in her deposition any specific instances of alleged harassment following the Minnesota trip, she did testify that Barr's sexual innuendoes, comments, and gestures continued until her employment at Illinois Central ended.

After the Minnesota trip, Plaintiff claims that her duties and responsibilities at Illinois Central changed. The parties dispute what the scope of Plaintiff's job actually was. Defendants argue that Plaintiff was in charge of charter billing - submitting invoices to schools for busing services performed - from the time she started at the company until August 2005. In August 2005, the company was awarded a large contract, under which it provided transportation services for special education students 16 school districts. Defendants allege that Plaintiff's primary job function from August 2005 until Illinois Central lost the special-education contract in July 2007 was to bill the school districts for work performed under the contract. Defendants further allege that from July 2007 until Plaintiff's employment ended in October 2007, Plaintiff's job duties changed, and her work consisted almost entirely of traveling to different company locations, where she worked with the sites' managers to set up performance indicator reports.

Plaintiff admits that she performed these duties, but she argues that she also did budget analysis, accounting, prepared bids, developed the company's web site, and was involved in other aspects of the company's information technology. Plaintiff alleges, however, that Defendants hired four male employees, all of whom she helped train, to assume her job responsibilities. Defendants dispute that they hired these men to assume Plaintiff's job. Rather, they argue that because Illinois Central encountered enormous business growth - by the start of the 2007--08 school year, the company had more than 1,000 employees, more than 500 buses, and at least 10 terminals in Illinois - it needed to hire these people to address its expanded and rapidly changing needs.

Plaintiff alleges that Defendants hired Cheshareck in August 2006 to assume some of her budget analysis, performance indicator report, and accounting work. She alleges that Defendants hired Erik Klepp ("Klepp") around June 1, 2007, to assume some of her budget analysis and performance indicator report duties. She alleges that Defendants hired Dan O'Brien "O'Brien" several months before her employment ended to assume what she alleges was her main responsibility of working on bids. Defendants claim that O'Brien started working at Illinois Central about three months after Plaintiff left the company. Plaintiff alleges that Defendants hired Gerron Kelly "Kelly" as a budget analyst to replace her. Defendants claim, however, that Kelly worked at Illinois Central after Plaintiff left the company, from approximately January 1, 2008, to May 14, 2008. Plaintiff also alleges that Defendants hired another man, who she trained, but whose name and job duties she cannot remember. Plaintiff alleges that she complained to Barr that Illinois Central was hiring men to assume her job duties, and that she complained to Barr and numerous other employees at Illinois Central that men were being paid more than her and other female employees. Defendants deny that Plaintiff made such complaints.

Plaintiff's employment at Illinois Central ended on October 25, 2007. Defendants claim that Plaintiff resigned, while Plaintiff argues that she was fired. Plaintiff filed her Charge of Discrimination with the Equal Employment Opportunity Commission (the "EEOC"), alleging sexual discrimination, on May 30, 2008. The EEOC closed Plaintiff's case and issued her a Right to Sue Letter on June 6, 2009.

Plaintiff filed her nine-count Complaint on August 31, 2009, and filed an Amended Complaint on February 25, 2010. Counts I, II, and III are brought pursuant to Title VII of the Civil Rights Act of 1964 for sexual harassment/hostile work environment, gender discrimination, and retaliatory discharge, respectively. Plaintiff raises claims for uncompensated wages she alleges Defendants owe her under the Illinois Minimum Wage Law (Count IV), the Illinois Wage Payment and Collection Act (Count V), and the federal Fair Labor Standards Act (Count VI). Plaintiff also raises Illinois state law claims for assault and battery (Count VII), intentional infliction of emotional distress (Count VIII), and a violation of the Illinois Gender Violence Act (Count IX). Defendants have brought this Motion for Summary Judgment currently before the Court on all nine Counts of Plaintiff's Amended Complaint, which both parties have fully briefed.


Summary judgment is proper if "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).

A fact is material if it could affect the outcome of the suit, and a dispute is genuine where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In ruling on summary judgment, the Court does not to weigh the evidence or determine the truth of the matter, but determines whether a genuine issue of material fact exists that warrants trial. Id. at 249. In making this determination, the Court must view all the evidence and draw any reasonable inferences therefrom in the light most favorable to the nonmoving party. See, Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000).

The moving party bears the burden of establishing the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. See, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party may not rest on mere allegations, but must present specific facts showing that a genuine issue exists for trial. See, Big O Tire Dealers, Inc. v. Big O Warehouse, 741 F.2d 160, 163 (7th Cir. 1984). To support their position that a genuine issue of material fact does or does not exist, the parties may cite to materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, and interrogatory answers, or show that the materials in the record do or do not establish a genuine dispute. FED. R. CIV. P. 56(c).


A. Title VII Claims

Plaintiff has brought three claims pursuant to Title VII of the Civil Rights Act of 1964: sexual harassment/hostile work environment (Count I), gender discrimination (Count II), and retaliation (Count III). The Court addresses each Count separately.

1. Sexual Harassment/Hostile Work Environment

Title VII prohibits discrimination based on an individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). This encompasses a claim for sexual harassment that "arises when the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." Hertzberg v. SRAM Corp., 261 F.3d 651, 657 (7th Cir. 2001) (internal quotation omitted). Also, for an employer covered by Title VII to have liability, its response or lack thereof to the alleged sexual harassment must be negligent. See, Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir. 1994). This negligence requirement is easily satisfied in this case, as the primary person who allegedly harassed Plaintiff is Barr, who controls Illinois Central.

Defendants argue that Plaintiff's harassment claim is time barred. A party has 300 days from the alleged harassment to file a charge with the EEOC. See Doe v. Oberweis Dairy, 456 F.3d 704, 708 (7th Cir. 2006). Plaintiff filed her Charge of Discrimination on May 30, 2008. The Court notes that Plaintiff failed to attach the Charge to the Amended Complaint, but attached it as an exhibit to only the initial Complaint. For purposes of this Motion, however, the Court treats the Charge and the EEOC's June 9, 2009, Dismissal and Notice of Rights as being attached to the Amended Complaint.

Any alleged discrimination that occurred on or subsequent to August 4, 2007, falls within the 300-day period to file a timely EEOC complaint. Defendants argue that Plaintiff testified at her deposition that the last incident of alleged harassment occurred in early July 2007. Defendants attempt to establish this fact by citing to Plaintiff's testimony about Barr telling Plaintiff that he wanted to get a motel room for her as a birthday present, with the innuendo that he would join her in the room for sexual relations. See, Vince Dep. 369:18--371:17, June 1, 2010. This allegedly occurred close to Plaintiff's July 4 birthday. Plaintiff testifies, however, that this event occurred in 2006, not 2007. See id. at 370:1. Plaintiff alleges numerous instances of harassment that followed this July 2006 event. Most of these occurred before or during her April or May 2007 trip to Minnesota with Barr. See id. at 372:2--397:16. However, Plaintiff does not testify that the harassment stopped following this Minnesota trip.

Rather, as the following exchange between Plaintiff and Defendants' counsel shows, Plaintiff never unequivocally states that the ...

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