United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiff Courtney Holladay brings a claim for retaliation against defendants CME Group, Inc., Chicago Mercantile Exchange, Inc., and the Board of Trade of the City of Chicago, Inc. (collectively, "CME defendants"), and claims for sexual harassment, sex discrimination, retaliation, assault and battery, and intentional infliction of emotional distress against defendants MWD Trading and Mark Downs. All defendants now move for summary judgment. For the following reasons, CME defendants' motion is granted and Downs' motion is respectfully denied.
The following relevant facts are undisputed except where noted. Defendant Mark Downs leases a Chicago Mercantile Exchange ("CME") membership and is a trader in the Cattle pit of the Chicago Board of Trade. In 2008, Downs hired Holladay as a non-member employee. Neither Holladay nor Downs were employees of CME Group at any time. Holladay alleges that Downs sexually harassed her beginning in March 2008 and continuing throughout her employment. Holladay resigned or was laid off and re-hired several times before she was ultimately terminated in November 2010.
Holladay claims Downs groped her, showed her his erect penis, grabbed her buttocks, reached under her shirt and brushed up against her nipples, asked for sexual favors and called her inappropriate nicknames. Downs allegedly made advances toward Holladay in the trading pit in front of pit reporters and security. According to Holladay, she complained to at least five pit reporters about Downs' conduct but nothing was done to stop it. In August 2008, during a period in which Holladay was not employed by Downs, the two had sex at Downs' house. Shortly thereafter, Holladay was re-hired. Holladay asserts that Downs conditioned her re-employment on having sex with him.
CME Group is a publicly traded holding company and parent company of the CME and the Chicago Board of Trade ("CBOT"). CME and CBOT operate under the oversight of the U.S. Commodity Futures Trading Commission and pursuant to the Commodity Exchange Act. Accordingly, they are empowered to, among other things, "establish and enforce disciplinary procedures...to discipline...members or market participants that violate the rules of the board of trade..." (Dkt. #89, CME Stmt. of Facts, ¶2.) Pursuant to this authority, they have established rules for CME members and non-member employees.
CME Group's Market Regulation department monitors and enforces CME rules. Rule violations are investigated and enforced by the Investigations and Enforcement groups. At the conclusion of an investigation, the Investigations group generates a report with factual findings and recommendations for whether charges should be pursued against an individual. If charges are recommended, the matter is referred to the Enforcement group which makes the decision whether to pursue charges. Proposed charges are presented to the CME Probable Cause Committee ("PCC") which is responsible for determining whether to hold the individual liable for the alleged charges.
In November 2010, Market Regulation, through its Investigations and Enforcement groups, was in the midst of investigating trading activity in the Cattle pit. On November 11, 2010, Investigator Aaron Nessel viewed video footage from May 14, 2010 and saw Downs apparently put his right hand down the front of Holladay's shirt while giving her a hug with his left hand. Investigator Urmi Graft also viewed the video and confirmed what Nessel had seen. Nessel and Graft consulted with Associate Director of Investigations, Greg Benbrook, and Associate Director of Enforcement, Andrew Vrabel, and an investigation into Downs' conduct was opened on November 16, 2010.
In late November, Nessel, Graft and Benbrook met and developed a plan for the Downs investigation. The parties dispute whether it was decided at that time or at a later date to interview Holladay. On November 29, 2010, Nessel and Graft interviewed Downs. Downs allegedly gave conflicting accounts of what was he was doing in the video and claimed that he had a consensual on-and-off intimate relationship with Holladay. Downs ultimately admitted that he had put his hand down Holladay's shirt. Member trader Robert Piatkowski and another of Downs' non-member clerks, Alec Lehmann, appeared in the footage in the vicinity of Downs and Holladay and were interviewed on December 1, 2010 and January 5, 2011, respectively.
In a letter dated December 22, 2010, Scott Fanning, counsel for Holladay, requested Holladay's personnel file from CME Group, and attached an attorney's lien. The attorney's lien states, in relevant part:
Courtney Holladay has placed in my hands as her attorney for suit or collection a claim, demand or cause of action against you growing out of illegal and improper discrimination against her and/or harassment of her by you, during her employment with you and continuing until the present. (Dkt. #103-6, Holladay App. of Ex., p. 3.)
Counsel for CME Group, Janet Troyke, responded on December 27, 2010 and January 13, 2011 requesting clarification of Holladay's alleged claims. Troyke further advised that Holladay was not employed by CME Group.
Holladay filed a charge of discrimination with the Illinois Department of Human Rights ("IDHR") against CME Group on January 19, 2011. On January 25 and February 3, Graft sent letters to Holladay requesting her in-person interview. According to Holladay, the letters were sent to one of her previous addresses and she did not receive them.
On February 15, Troyke emailed Fanning to advise him of Market Regulation's request to interview Holladay. Fanning replied on February 18, and inquired as to the specifics of the investigation and consequences if Holladay did not give an interview. That same day, Troyke, Fanning and Vrabel held a conference call at which time Vrabel explained that Holladay was not a CME Group employee but, as a non-member employee, was subject to the CME rulebook. Vrabel also stated that Holladay's interview was sought in relation to the Downs investigation. Vrabel further advised that the CME rulebook was binding on Holladay and she could be subjected to fines up to one million ...