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Nadia Musa-Muaremi v. Florists' Transworld Delivery

October 5, 2011

NADIA MUSA-MUAREMI, PLAINTIFF,
v.
FLORISTS' TRANSWORLD DELIVERY, INC. (FTD), DEFENDANT.



The opinion of the court was delivered by: Judge Joan H. Lefkow

OPINION AND ORDER

Plaintiff Nadia Musa-Muaremi filed her first amended complaint against Florists' Transworld Delivery, Inc. ("FTD") alleging claims for quid pro quo sexual harassment, hostile work environment, sex discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII").*fn1 Before the court is FTD's motion for summary judgment on each of the claims set forth in the complaint. Musa-Muaremi has filed a cross-motion for summary judgment on FTD's affirmative defense to vicarious employer liability. For the following reasons, FTD's motion [#138] will be granted in part and denied in part and Musa-Muaremi's motion [#143] will be denied.*fn2

SUMMARY JUDGMENT STANDARD

Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions, and affidavits that are part of the record. Id. While the court must construe all facts in a light most favorable to the non-moving party and draw all reasonable inferences in that party's favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), where a claim or defense is factually unsupported, it should be disposed of on summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc., 216 F.3d 596, 598 (7th Cir. 2000).

BACKGROUND*fn3

Musa-Muaremi was employed by FTD from December 4, 2004 to May 21, 2007. On September 20, 2006, she was promoted to an Assistant Floral Buyer position in FTD's Fresh Flowers Department, where she worked under the supervision of Michael Martin. Martin was the Director of Fresh Flowers. On January 8, 2007, Musa-Muaremi was promoted to the position of Logistics Analyst, also in the Fresh Flowers Department. As a Logistics Analyst, Musa-Muaremi was supervised by Andrew Fordyce, the Fresh Flowers Procurement and Logistics Manager. Fordyce's conduct gives rise to the instant complaint.

As Musa-Muaremi's supervisor, Fordyce assigned her daily work assignments and approved requests for time off. Fordyce did not have authority to discipline, hire, or terminate employees. That authority resided with Martin, and Martin could only do so with the approval of the Human Resources Department. Fordyce could, however, make recommendations to Martin regarding disciplinary action. Fordyce could also make recommendations as to who should receive bonuses, subject to the approval of FTD's Chief Financial Officer and Chief Executive Officer and President. Musa-Muaremi testified that Fordyce frequently stated that he had the power to hire and fire and discipline employees and that he threatened her and other employees with discipline and termination. Pl.'s Ex. 1 ¶¶ 145, 149; Def.'s Ex. 1 at 171.*fn4

Michelle Fryer, a former FTD employee, similarly testified that Fordyce frequently threatened employees with termination. Pl.'s Ex. 26 ¶ 27. Aimee Bachman, another employee, also testified that Fordyce had the authority to fire and discipline employees. Pl.'s Ex. 30 at 109--110.

I. Fordyce's Conduct Prior to May 1, 2007

As related by Musa-Muaremi and her witnesses, Fordyce engaged over an extended period of time in vulgar, harassing behavior towards Musa-Muaremi and others. Musa-Muaremi asserts that Fordyce behaved inappropriately as early as the summer of 2006, when she interviewed for the Assistant Floral Buyer position. Musa-Muaremi testified that Fordyce interviewed her and that he asked whether she was married or single. When Musa-Muaremi stated that she was married, Fordyce stated, "Now, you don't plan on getting pregnant anytime soon, do you?" Def.'s Ex. 1 at 173. Musa-Muaremi told Fordyce that she didn't think he was supposed to ask that type of question. Fordyce responded, "You take things too seriously. It won't work in this department." Id. at 174.

When Musa-Muaremi started work as a Logistics Analyst, she worked in a team of six women who were supervised by Fordyce. Three of the women received special treatment from Fordyce. He referred to these three employees as his "minions" because, in Musa-Muaremi's opinion, they did "whatever he asked them to." Id. at 154. Fordyce allowed these employees to take undocumented time off and work from home. He also took them out for lunches and cocktails.

Beginning in February 2007, Fordyce began to single Musa-Muaremi out for negative attention. Fordyce yelled at Musa-Muaremi in front of other employees. He also pulled her aside from other employees by snapping his fingers, pointing his finger at her, stating, "You," and then pointing to where he wanted her to go. Fordyce called Musa-Muaremi a bitch on several occasions. He also referred to other female employees as "bitches." In February or March 2007, Musa-Muaremi told Fordyce that his use of the word bitch was not appropriate. Fordyce responded, "You know you're a bitch." Pl.'s Ex. 1 ¶ 17.

In February 2007, Musa-Muaremi met with Martin because she had not received a raise at the beginning of the fiscal year. Martin told her that raises hadn't been provided due to budgetary constraints. He then said, "Let me ask you a question: Are you starving -- are you starving to put food on your table?" Def.'s Ex. 1 at 388. Musa-Muaremi responded, "Wow. Do I need to be?" Martin told Fordyce about this conversation, and Fordyce started to mock MusaMuaremi. Fordyce told her that because she was a woman she could not be the "breadwinner" in her family and that usually men get promotions and raises. Id. at 388. Fordyce began to repeat the phrase, "Are you starving to put food on your table?" Other employees told Musa-Muaremi that this was a line from a recruiting ad for Heavenly Bodies strip club. When Fordyce realized that Musa-Muaremi knew what he was referring to, he started whispering "Heavenly Bodies" when he saw Musa-Muaremi. Later, when a female employee in the sales team asked Fordyce if he could provide change for a $20 bill, Fordyce told the employee to ask Musa-Muaremi because "[she] has a lot of singles . . . you know." Id. at 389. The teasing continued "at random" for weeks. Id. at 390.

In March 2007, Fordyce made two offensive comments while he and Musa-Muaremi were on a business trip in Miami. Fordyce told Musa-Muaremi that if she wasn't able to find cab to take her to the airport early in the morning she could "flash a taxi" to get a free ride. Id. at 223. He also asked whether she was "physically, emotionally and sexually happy" when they were driving in a car together. Id.

FTD employees worked in a cubicle environment and Musa-Muaremi's desk was not far from Fordyce's. As a result, she frequently heard him swear and use crass language. Fordyce also engaged in sexually explicit phone calls while he was at his desk. On one occasion, MusaMuaremi overheard Fordyce talking on the phone with a woman who Musa-Muaremi believed to be his girlfriend. Fordyce engaged in a graphic discussion of oral sex, sex toys, and sex with multiple partners. Musa-Muaremi passed Fordyce a note that said that she could hear him, and then walked away. On another occasion, Musa-Muaremi told Fordyce that she didn't think his conversation was appropriate and Fordyce told her to "go buy earplugs." Id. at 234. Sometime in March 2007, Musa-Muaremi overheard Fordyce talking on the phone with a female recruiter and asking her about a "rabbit" vibrator and whether she had favorite sexual positions. Id. at 223--24.

Fordyce told Musa-Muaremi that she should try to lose weight "because the Coke bottle body is out of style." He suggested that she go to Weight Watchers meetings with two other female employees. Fordyce also told Musa-Muaremi to stop eating a piece of candy because it was full of calories.

Musa-Muaremi testified that Fordyce frequently used the term "rape" in unnecessary contexts, as in "[L]ook at these prices on here that Queens Flowers is charging us . . . They are raping us." Id. at 411. Fordyce stopped making these comments after Musa-Muaremi and Martin told him that his language was offensive. Fordyce also told Musa-Muaremi that she could not go on a business trip to Bogota, Colombia because she would probably be kidnapped and "get raped multiple times." Id. at 417.

On one occasion, after a female employee had been working late at the office, Fordyce told a group of employees that she must have been working late "because she has no life. Her boyfriend probably doesn't want to sleep with her. Who would? She's a whale." Id. at 409. Musa-Muaremi also overheard Fordyce tell another female employee that she should start saving money for a breast augmentation procedure. Id. at 391.*fn5

Musa-Muaremi heard Fordyce state that he wanted to hire a physically attractive woman from another department to be a sales manager because she was "a knock-out" and "a 10." Id. at 413. Fordyce became upset when the attractive woman was not hired into the department. The woman who was eventually hired for the sales position used a cane. Musa-Muaremi heard Fordyce refer to the new hire as "the cripple." Id. at 413. Musa-Muaremi told Fordyce that she didn't think this comment was appropriate. Fordyce responded, "She's useless because her legs can't go up in the air." Id.

On another occasion, Fordyce wanted to decorate one of his favorite employee's cubicles with confetti for her birthday. Some of the other women in the department told him that the confetti would be difficult for the cleaning lady to vacuum from the floor. Fordyce responded, "Well, I have something for her to suck on." Id. at 414.

Fordyce inappropriately referred to another female employee as a "whore." MusaMuaremi was talking to the employee's seven-year-old daughter, who was visiting the office. Fordyce stood near Musa-Muaremi's desk and said that he "wonder[ed] if she [was] going to end up a whore like her mother." Id. at 418. Musa-Muaremi believed that Fordyce was referring to the fact that the girl's mother had been a "teenaged mother." Id. at 417.

In April 2007, Musa-Muaremi heard Fordyce tell two other female employees who were on a team call to stop "rolling around in bed and playing around with [your] boyfriends." Id. at 270.

Fordyce also swore and raised his voice at two male employees, Brad Jensen and James Majka. Fordyce did not like Jensen and referred to him more than once as a "fucking idiot" and called him fat. Fordyce would repeatedly punch his fist into his hand, apparently in anger or frustration, when he was around male and female employees.

II. Complaints About Fordyce Prior to May 1, 2007

A. FTD's Sexual Harassment Policy

FTD's Employee Handbook states that harassment based on gender is prohibited and that "abusive conduct or harassment" includes "derogatory comments, slurs, statements, jokes, or other objectionable behavior based on upon a person's race, age, sex, color, religion, disability, ethnicity, or other protected status." Def.'s Ex. 7 at 27. Employees who believe they have been subjected to sexual harassment are directed to report the offensive conduct immediately to their manager or to the Human Resources Department. Id. at 28. A manager who receives a complaint of sexual harassment should bring the complaint to the attention of the Human Resources Department. FTD will undertake an impartial investigation "immediately" after a complaint has been made. Id. Retaliation of any kind is prohibited under FTD's harassment policy and employees are directed to report any allegedly retaliatory act to their manager or to the Human Resources Department. Id. FTD also has an informal "open-door policy" which provides that an employee can raise any issue with the Human Resources Department without going to a manager.

All new employees, including Fordyce, reviewed FTD's anti-harassment policy during orientation. It is undisputed that Musa-Muaremi was aware of FTD's anti-harassment policy and that she knew that she could make complaints regarding sexual harassment or gender discrimination to the Human Resources Department or to her manager. She also took college level human resources courses while she was employed at FTD. As part of her course work she learned about Title VII and that an employee can make a sex discrimination complaint to her employer's human resources department.

B. Musa-Muaremi's Complaints

Musa-Muaremi testified that she first told Angie Weld, the Manager of Human Resources, about Fordyce's alleged misconduct in August of 2006. She testified that she told Weld about Fordyce's comments during her interview for the Assistant Floral Buyer position and that Weld agreed that the comments were inappropriate. Weld offered to talk to Fordyce about his behavior, but Musa-Muaremi asked her not to say anything at that time. Musa-Muaremi also told Martin about Fordyce's interview questions and Martin responded, "[T]hat's his personality." Def.'s Ex. 1 at 171.

In November 2006, Musa-Muaremi told Weld that Fordyce was very loud in the office and that he had told her that people who worked for "dot coms" have "sticks up their but[t]s." Id. at 169. Musa-Muaremi stated that she was offended by this comment because she had previously worked for an internet company.

In early January 2007, when Musa-Muaremi met with Martin to have her midyear review for her work as an Assistant Floral Buyer, Musa-Muaremi expressed some misgivings about the possibility of working under Fordyce in the future. Musa-Muaremi told Martin that she had concerns about working under Fordyce because she had a "bad relationship" with him and he didn't treat the other employees well. Id. at 218.

At her deposition, Musa-Muaremi testified that in early February 2007, after she started working under Fordyce, she told Martin that Fordyce had called her a bitch. In her affidavit, she further asserts that she "complained to Martin on several occasions" in February, March, and April 2007 and that each time Martin told her, "You need to manage him." Pl.'s Ex. 1 ¶¶ 51--54. Musa-Muaremi does not describe the substance of her complaints.

Musa-Muaremi also testified that, on two different occasions, she complained to Martin about Fordyce's sexually explicit phone calls. After the second complaint, Martin told MusaMuaremi that he had talked to Fordyce in the past about being "more soft spoken" and that he had already discussed the inappropriate conversation with Fordyce. Id. ¶ 59.*fn6

Sometime in March 2007, Musa-Muaremi was approached by Robert Meiner, another manager at FTD, who expressed concern about things he had heard about Fordyce's conduct towards Musa-Muaremi. Def.'s Ex. 1 at 351. Meiner suggested that Musa-Muaremi report Fordyce's conduct to the Human Resources Department. There is no evidence that Meiner approached anyone in the Human Resources Department on Musa-Muaremi's behalf.

Musa-Muaremi testified that she "went to HR several times" to complain about Fordyce's behavior after she started working as a Logistics Analyst. She could not remember her specific complaints, but she was certain that she had mentioned that Fordyce "ma[de] comments" and used "the B word." Def.'s Ex. 1 at 225.

On April 25, 2007, Musa-Muaremi told Amy Majka, the Director of Human Resources, that Fordyce was "crass and sexist" and that her complaints to Martin had "fall[en] on deaf ears." Id. at 227. Musa-Muaremi stated that "some things [had] happened" while she was with Fordyce in Miami. Id. at 228. She did not provide specific details. Musa-Muaremi also told Majka that Fordyce "made comments" and was "overly sexual with some of the girls in the office." Id. at 227. Majka told Musa-Muaremi to document Fordyce's behavior in the future and that she "was going to look into it." Id. at 229--230. Musa-Muaremi told Majka that she "was going to appeal to Michael [Martin] one last time because [she] couldn't ...


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