MEMORANDUM AND ORDER
DAVID R. HERNDON, District Chief Judge.
I. Introduction and Background
Pending before the Court is defendant's motion for summary judgment (Doc. 35), and defendant's reply to plaintiff's response (Doc. 37). Defendant, Associated Lumber Industries, Incorporated ("Associated"), claims it is entitled to summary judgment because it exercised reasonable care to prevent and correct the sexually harassing behavior, and because plaintiff unreasonably failed to take advantage of any preventive or corrective measures. Plaintiff opposes the motion (Doc. 36), although she consents to the entry of summary judgment in count three, conceding that it is encompassed by count two.
Plaintiff, Hillary Hoffner, filed her complaint (Doc. 2) against defendant and David Barnhardt, her supervisor on March 16, 2012. Plaintiff's complaint alleged one count of sexual harassment and hostile work environment in violation of Title VII, one count of sexual harassment in violation of the Illinois Human Rights Act ("IHRA"), and one count of constructive discharge. In her complaint, plaintiff alleges that Associated is an Illinois corporation, and she was employed by Associated as a cashier from June 15, 2011 until her alleged constructive discharge on August 22, 2011. Plaintiff alleges that she was sexually harassed by her supervisor, David Barnhardt and subjected to unwanted and unwelcome attention from him. Plaintiff also alleges that she complained to Arthur Mize, the General Manager over the facility in which she was employed. Plaintiff further alleges that Associated did not, to her knowledge, have a policy in place to address the sexual harassment and did not take appropriate measures to prevent future occurrence of Barnhardt's harassment. Plaintiff further alleges that due to the sexual harassment and Associated's failure to prevent the ongoing harassment, she was forced to resign her position.
In count one, plaintiff alleges that she was subjected to unwelcome and unwanted sexual harassment from her supervisor, in violation of Title VII, 42 U.S.C. § 2000(e) et seq. Plaintiff claims defendant allowed a hostile work environment in that the unlawful practices of which she complained were allowed to continue after her complaints. In count two, in violation of the IHRA, 775 ILCS 5/2-102(D), plaintiff reincorporates the same allegations as count one.
II. Summary Judgment
Summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record or affidavits that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All justifiable inferences are to drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If the moving party meets its burden, the non-moving party has the burden of presenting specific facts to show there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324. In ruling on a motion for summary judgment, the non-moving party's evidence "is to be believed, " and all justifiable inferences drawn from it in the light most favorable to the non-moving party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). Summary judgment in favor of the party with the burden of persuasion is "inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact." Id. at 553.
Sexual Harassment and Hostile Work Environment
Defendant first argues that plaintiff cannot prove employer liability because she did not suffer a tangible employment action. Defendant further argues that because plaintiff did not suffer a tangible employment action, it is entitled to the use of an affirmative defense known as the Faragher/Ellerth defense based on two United States Supreme Court cases decided on the same day. The cases, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), clarified when an employer may claim an affirmative defense against vicarious liability for an action committed by a supervisor. In Ellerth, the Supreme Court held:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.
Ellerth, 524 U.S. at 765. The Court clarified that its holding applied equally to the Faragher case as well. Id. at 764. There are two essential elements of the affirmative defense: (1) the employer must show that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective measures the employer provided, or to otherwise avoid harm. Id. at 765.
Although plaintiff claims she was constructively discharged, defendant disputes that. If plaintiff was constructively discharged, then the harassment ended in a tangible employment action and defendant is precluded from asserting its ...