United States District Court, N.D. Illinois, Eastern Division
For Crystal Larry, Plaintiff: Stephen G. Seliger, Attorney at Law, Chicago, IL.
For Bagcraft Papercon, Defendant: Jeffrey Scott Piell, LEAD ATTORNEY, Quarles & Brady LLP, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Geraldine Soat Brown, United States Magistrate Judge.
Plaintiff Crystal Larry (" Larry" ) brought this lawsuit against her former employer Bagcraft Papercon I, LLC (" Bagcraft" ) under Title VII of the Civil Rights Act (" Title VII" ), 42 U.S.C. § § 2000e et seq., alleging sexual harassment as well as retaliation for reporting the harassment and filing a charge with the Equal Employment Opportunity Commission (" EEOC" ). (Compl.) [Dkt 1.]  The court has subject matter jurisdiction over Larry's claim under 28 U.S.C. § 1331. The parties consented to the jurisdiction of the magistrate judge. [Dkt 10.] Before the court is Bagcraft's motion for summary judgment. [Dkt 28.] For the reasons that follow, Bagcraft's motion is granted.
Bagcraft, located in Chicago, Illinois, is engaged in the business of manufacturing paper and wax food bags for supermarkets and carry-out restaurants. (Pl.'s LR Resp. ¶ 2.)  Larry was employed at Bagcraft
as a Production Associate (Machine Operator) from 1989 to 2010. ( Id. ) Larry worked the 7:00 a.m. to 3:00 p.m. shift at Bagcraft's production plant, taking over her assigned machine from the previous shift worker at the beginning of each shift and turning it over the next worker at the end of the shift. ( Id. ¶ 3; Def.'s LR. Ex. 2, Dep. Crystal Larry at 93-94.)
Bagcraft maintained an Equal Employment Opportunity and Non-Harassment Policy prohibiting, among other things, sexual harassment in the workplace. (Pl.'s LR Resp. ¶ 14.) The harassment policy prohibits " unwanted sexual flirtations" and " offering or implying to offer employment benefits in exchange for sexual favors." ( Id. )  The harassment policy describes the complaint procedures and management responsibilities. ( Id. ) Larry received training on the harassment policy and procedures on May 12, 2010. ( Id.)
A. Larry's Interactions with Jazon Carreon
In March 2009, Larry began reporting to shift supervisor Jazon Carreon. (Pl.'s LR Resp. ¶ 4.) Carreon reported to the Production Manager Ed Laywell, who in turn reported to the Plant Operations Manager Patrick Lueth, the top manager at the Chicago plant. ( Id. ) Carreon was responsible for ensuring that daily production goals were met. ( Id. ) His duties included assigning employees to the machines based on Bagcraft's production schedule, conducting employee reviews, and managing day-to-day operations. (Pl.'s LR Ex. 5, Dep. Patrick Lueth at 28-29.) Carreon had the authority to issue verbal disciplinary warnings to employees, but he did not have the authority to independently hire, fire, promote, demote, or discipline the employees he supervised. (Pl.'s LR Resp. ¶ 5.)
Larry testified that, over a six-week period in March and April 2009, Carreon hung around her machine, told her she smelled good and that he would buy her perfume, and asked her if she had ever dated a Mexican man. (Larry Dep. at 201-08.) He told her that could " make things easier" for her. ( Id. at 203.) Larry reported to Laywell that Carreon was sexually
harassing her and that she wanted the behavior to stop. ( Id. at 210-11.) Larry admits that she did not give Laywell specific examples of the harassment. ( Id. at 211.) According to Larry, Laywell told her that Carreon was new and to " give him a little time." ( Id. at 210.) Larry testified that the objectionable behavior stopped between April 2009 through November 2009. ( Id. at 211-12.) However, Larry testified, not long after she complained to Laywell, Carreon moved her out of the department she was working in and denied her overtime work. ( Id. at 208, 213-14.) Larry did not file any union grievances with respect to Carreon's actions in 2009, and did not bring any complaints to Bagcraft's Human Resources department about sexual harassment in 2009. ( Id. at 220-221.) Carreon's behavior did not prevent Larry from doing her job. ( Id. at 209.)
Larry testified that for several months, Carreon did not engage in any conduct that Larry considered offensive, but then in November 2009, Carreon again complimented her on her cologne. ( Id. at 206-12.) She also testified that in March 2010, Carreon said he liked her, offered to get her the day off for her birthday and asked if he could take her out, which she refused. ( Id. at 242-43.) He also said that he liked her hair, but she did not find that harassing. ( Id. at 244-45.) Carreon told a co-worker, Dwain Davis, that Larry was " his girl," but Larry and the co-worker laughed. ( Id. at 246-47.) Carreon also spoke Spanish around Larry even after she told him she did not understand it, and he offered to teach it to her which she does not consider harassing. ( Id. at 250-51.) Carreon asked her to come in and work overtime on days that he was working, but she declined. ( Id. at 252-53.) In April, he complimented her on the color of her shirt while looking at her breasts. ( Id. at 253-54.) She also testified that he stared at her breasts and said, " Hmmm." ( Id. at 187.)
Larry's co-worker, Dwain Davis, testified that he observed Carreon hanging around Larry's machine " too often" but he does not know what Carreon and Larry were talking about. (Pl.'s LR Ex. 7, Dep. Dwain Davis at 19.) Davis heard Carreon say that he " loved the way [Larry's] blouse looks on her," and that she was his (Carreon's) favorite. ( Id. at 9-11.) On one occasion, Larry complained to Davis that Carreon said she was his girlfriend, and Davis heard Carreon say that Larry was his " girlfriend," but Davis did not tell Joe Sims, the union representative, that he heard that. ( Id. at 6, 11, 22.) Davis does not recall Larry saying that Carreon asked her out. ( Id. at 19.) Davis observed that Larry was moved around a lot while others were not. ( Id. at 7.) Initially he testified that he viewed that moving around as giving Larry " a hard time," but later changed his mind. ( Id. at 7-8.)
Larry admitted that Carreon's actions did not interfere with her ability to continue working and carry out her job duties. (Larry Dep. at 251, 254-55.)  Carreon never touched Larry in a sexual or harassing manner. (Pl.'s LR Resp. ¶ 12; Larry Dep. at 181-82.)
B. Larry's Complaints About Carreon
Larry testified that she approached Julie Wisniewski, the Human Resources Manager, in March or April 2010 complaining that Larry had twice looked at her breasts instead of talking with her, and it made her uncomfortable. (Larry Dep. at 257.) Bagcraft asserts that the first time Larry
complained to Human Resources was May 25, 2010. (Def.'s LR Stmt. ¶ 15.) The parties agree that on May 25, 2010, Larry made a complaint to Wisniewski about Carreon's behavior. (Pl.'s LR Resp. ¶ 15.) According to Wisniewski's report, Larry complained that Carreon sexually harassed her because he stared at her chest, and on one occasion said he liked how her shirt looked on her. (Pl.'s LR Ex. 10, Wisniewski Report at B0440.) Larry further complained that Carreon sometimes spoke in Spanish and moved her from machine to machine. ( Id. ) Larry did not identify any witnesses to the alleged harassment. (Pl.'s LR Resp. ¶ 15.)
Wisniewski interviewed Carreon on May 25 about Larry's complaint. ( Id. ¶ 16.) Carreon stated that he commented on the color of Larry's shirt because he had a running shirt of a similar color, but Larry testified he never said anything to her about a running shirt. (Def.'s LR Ex. 5, Dep. Jazon Carreon at 43; Larry Dep. at 260.) Wisniewski then met with Carreon and Lueth to address Larry's complaint, during which Wisniewski and Lueth advised Carreon that his comment about the color of Larry's shirt was not a violation of the harassment policy but directed him to limit future discussions with Larry to work-related topics. (Pl.'s LR Resp. ¶ 17.) On May 26, Wisniewski informed Larry that her complaint had been investigated and did not " rise to the level of a policy violation" and that she should report any future complaints. ( Id. ¶ 18.) At some point, Wisniewski called Carreon into a meeting with Larry to explain to Larry how the machine and department assignments were made. ( Id. ¶ 19.)
In June 2010, Larry approached Wisniewski to add to her complaint of sexual harassment, and Wisniewski asked her to describe her complaints in writing. ( Id. ¶ 20.) Larry presented a written statement of the alleged harassment to Wisniewski on June 16, 2010, which she intended to be an accurate and complete description. ( Id. ¶ ¶ 21-22.) It is not clear from the parties' presentation of the facts whether that statement is contained in the record, although there is a two-page written statement by Larry with that date on it among her exhibits. (Pl.'s LR Ex. 6.) In that statement, Larry complained that Carreon, on unspecified dates, asked her if she ever dated a Mexican man, told her they have the " same blood running through our vein[s]," told her how good she smelled, told her that her shirt brought out the color of her eyes and on another occasion told her she was wearing his " favor[ite]" shirt, told her how well she was doing on all the machines he put her on, told her he could get her the day off on her birthday, spoke to her in Spanish even though she told him it made her uncomfortable, and told a co-worker she was his " girl." ( Id. )
Wisniewski met with Larry on June 16 and went over the written allegations. (Pl.'s LR Resp. ¶ 22.) Larry was not able to identify specific dates for her allegations. ( Id. ) Larry identified Dwain Davis as the only witness. ( Id. ) Wisniewski interviewed Davis, who she says reported that he had not witnessed any such activity. ( Id. ¶ 24.) Davis testified in his deposition that he told Wisniewski that Carreon did not treat Larry any differently from any other employee and that he did not think there was anything wrong with Carreon's comments to Larry. (Davis Dep. at 53.)
Wisniewski met with Carreon on June 16 and went over Larry's allegations line by line. (Pl.'s LR Resp. ¶ 23.) Carreon denied Larry's allegations for the most part, but admitted that he did say that they had the same blood running through their veins; however, that it was in response to Larry stating to him that she did
not think he liked black people. ( Id. ; Def.'s LR Ex. 5, Carreon Dep. at 77-80.) Carreon denied asking Larry if she had dated a Mexican man. (Wisniewski Report at B0442.) Carreon reported to Wisniewski that after an employee teased him about Larry being his " girlfriend" because he was nice to her although she was rude to him, he said that he liked all the female employees and that they were all his " girlfriend." ( Id.) He did not recall telling Larry he would make things " easier" for her, but stated that he frequently tells employees to let him know if they need additional help. (Def.'s Resp. Pl.'s Add'l Facts ¶ 5.)
Wisniewski found Carreon's answers to be clear, consistent, and non-hesitant. (Pl.'s LR Resp. ¶ 23.) Wisniewski thereafter concluded that there was no violation of the harassment policy, and informed Larry of this on June 17, 2010. ( Id. ¶ 25.) Wisniewski asked Larry to report any future comments or actions she found inappropriate or harassing. ( Id. ¶ 26.) Larry submitted no further report or complaint to Bagcraft about Carreon's behavior. ( Id. )
Larry filed an EEOC charge on July 28, 2010 alleging sex discrimination, disability discrimination, and retaliation. (Pl.'s LR Ex. 14, EEOC Charge.) Bagcraft received the EEOC charge on ...