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Davis v. Packer Engineering, Inc.

United States District Court, N.D. Illinois, Eastern Division

January 24, 2017


          PACKER ENGINEERING, INC. James K. Borcia TRESSLER LLP One of Its Attorneys


          Andrea R. Wood Honorable Judge.

         Defendant, Packer Engineering, Inc. (“Packer Engineering”), by and through its attorneys, Tressler LLP, pursuant to Federal Rule of Civil Procedure 50(a) hereby submits its Motion for Judgment as a Matter of Law.


         Plaintiffs have now closed their case. Judgment should be entered in Packer Engineering's favor as Plaintiffs have failed to make out a prima facie case.


         Rule 50 of the Federal Rules of Civil Procedure allows a district court to enter judgment against a party who has been fully heard on an issue during a jury trial if “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed.R.Civ.P. 50(a) (motion for judgment as a matter of law), (b) (renewed motion for judgment as a matter of law).

         Plaintiffs Davis and Wilson Have Failed to Establish A Hostile Work Environment

         Title VII is not a “general civility code for the American workplace.” Onacle v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998). Simple teasing, offhand comments and isolated incidents do not amount to a hostile work environment claim under Title VII. Farragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). To establish a hostile work environment claim, a plaintiff must establish the following: (1) she was subject to unwelcome harassment; (2) the harassment was based on her gender (3) the harassment was severe or pervasive so as to alter the conditions of the employee's work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Porter v. Erie Foods Int'l, 576 F.3d 629, 634 (7th Cir. 2009); Kelly v. Municipal Courts of Marion County, Ind., 697 F.3d 902 (7th Cir. 1996). In order to be admissible in a case such as this the evidence must show that the subject actions demonstrated an anti-female animus. Marotta v. Ford Motor Co., 2016 WL 3197425, *5-7 (E.D. Mich. June 9, 2009).

         Here Davis and Wilson have failed to meet any of these elements. To determine whether workplace harassment was sufficiently severe or pervasive to be actionable, courts look at “all of the circumstances, including the frequency of the discriminatory conduct, how offensive a reasonable person would deem it to be, whether it is physically threatening or humiliating conduct as opposed to verbal abuse, whether it unreasonably interferes with an employee's work performance, and whether it was directed at the victim.” Lambert v. Peri Formworks Sys., 723 F.3d 863, 868 (7th Cir. 2013). Second, an employer “may be found liable for a hostile work environment created by an employee who was not the plaintiff's supervisor only where the plaintiff proves that the employer has been negligent either in discovering or remedying the harassment.” Hrobowski v. Worthington Steel Co., 358 F.3d 473, 477 (7th Cir. 2004). Plaintiffs did not present a supervisor harassment claim. An employer can only be held liable for a hostile work environment created by a plaintiff's coworkers “if it was negligent in discovering or remedying the harassment.” Bombaci v. Journal Cmty. Pub. Grp., 482 F.3d 979, 983 (7th Cir. 2007). Here Plaintiffs have failed to establish that Packer Engineering was negligent.

         Davis has not established any actions taking place within the statutory period that could support a hostile work environment claim.

         Wilson also has failed to do so. Here Plaintiff Wilson has admitted that she did not believe that McKinney knew she was viewing his allegedly viewing pornography and masturbating in his private office and also that the pornography was viewed by a male in the office next to McKinney, Dave Moore (“Moore”). Under these circumstances this evidence is not sufficient to establish a claim. Fonseca v. Secor Int'l, 247 Fed.Appx. 53 (9th Cir. 2007) (plaintiff entered Byrd's office unannounced and repeatedly caught him looking at pornography on his computer screen, but admitted that Byrd did not intend for her to see these images does not satisfy objective hostility requirement); Neal v. Rock-Tenn Co., 2005 WL 1939955, *6 (S.D. Ind. Apr. 20, 2005) (defendant's general manager “viewing of pornographic internet sites and emerging from his office with an obvious erection was not directed to [plaintiff]”); Berry v. Delta Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001); McKenzie, 381 F.3d at 624 (“Title VII is not a general code of workplace civility, nor does it mandate ‘admirable behavior' from employers.”); Wyninger v. New Venture Gear, 361 F.3d 965, 976 (7th Cir. 2004) (employee could not “base a hostile environment claim upon [coworkers'] vulgar language because, at most, they are crude individuals who treated everyone poorly”); Holman v. State of Indiana, 211 F.3d 399, 403 (7th Cir.2000) (dismissing claims of husband and wife who alleged that their supervisor sexually harassed both of them by requesting sexual favors). Title VII does not prohibit inappropriate conduct that is inflicted on both sexes or inflicted regardless of sex. Berry, 260 F.3d at 808; Holman, 211 F.3d at 403. Therefore, an employer cannot be held liable for a hostile work environment unless the hostility is motivated by gender. Berry, 260 F.3d at 809-11 (holding harassment not actionable as sexual harassment under Title VII where plaintiff had no evidence that any harassment was based on her gender). The record supports the fact that Wilson did not believe that McKinney knew that Wilson knew that she could hear or was watching him viewing pornography. In her Affidavit Wilson testified:

“Today was the day that I was totally fed up with John's behavior. Because I truly believe in my heart that John McKinney did not know that we (Jackie and I) could hear him, let alone that I could see him.”

(PEX 20 at 3) (emphasis added). Thus, since Wilson concedes that McKinney did not believe that Wilson could hear him watching pornography or masturbating, this evidence does not show an anti-female animus and cannot support a claim of sexual harassment or hostile work environment. Also, Wilson attests that this conduct occurred with McKinney's door closed, which further indicates that he did not intend for anyone outside, including Wilson, to hear or see what he was doing. (PEX 20 at 1) (“even ...

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