United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE United States District Judge.
the Court is Defendant Walgreen Company's
(“Walgreens”) motion for summary judgment (Doc.
69). For the following reasons, the motion is GRANTED in part
and DENIED in part.
Lisa Agee began her employment with Walgreens in October 1994
at their distribution center in Mt. Vernon, Illinois. She was
transferred to the Maintenance/Janitorial Department in
August 2008 where David Strunk, Maintenance/Janitorial
Function Manager was her immediate supervisor. Agee alleges
that from the time of her transfer through July 2010, she was
subjected to sexual harassment by Strunk including
inappropriate comments, unwanted advances and implied
requests for sexual favors in exchange for overtime
assignments, which Agee refused.
the timing is unclear, Plaintiff alleges that she complained
to the Maintenance Manager, Dan Magnus that Strunk was
refusing to assign Plaintiff any overtime hours. Magnus
advised Plaintiff that she should discuss the matter with
2010, one of Agee's coworkers, Maurya Gill, complained to
the Human Resources Manager, Mary Supplee, that Strunk had
made inappropriate comments to her. Supplee conducted an
investigation that included interviews with several
employees, including Agee. On July 19, 2010, Agee and several
other employees provided written statements to Supplee,
alleging that Strunk had made inappropriate sexual comments
to them. Strunk resigned the same day. Agee alleges that the
day after she submitted her written statement, she was
ostracized by her coworkers at Dan Magnus' direction.
Agee filed a charge of sex discrimination and retaliation
with the EEOC on November 2, 2010.
March 20, 2013, Agee fell off a ladder at Walgreens resulting
in various injuries. She was approved for paid disability
leave from March 28, 2013 through June 6, 2013 and returned
to work with temporary restrictions on June 10, 2013. Agee
resumed work at full duty on July 22, 2013, but went on leave
again on August 8, 2013 due to an alleged mental condition
associated with her injuries. Agee was approved for paid
disability from August 16, 2013 through November 6, 2013. She
was then approved for unpaid disability leave from November
7, 2013 to April 12, 2015.
April 11, 2014 and October 2, 2014, there were numerous phone
calls, emails and in-person meetings between Agee and
Walgreens officials to discuss whether there were any job
openings that she could perform with or without
accommodations. Agee was told that there were no open
positions that fit her restrictions. She tested for the
position of General Office Clerk on January 8, 2015 and
failed. Agee then tested for the position of Supply Chain
Inventory Clerk on February 10, 2015 and failed. On March 26,
2015, the position of Receiving Office Clerk became open.
Agee tested for the position on April 7, 2015 and passed. She
returned to work April 13, 2015.
First Amended Complaint (Doc. 20) asserts three counts: Count
I alleges sexual harassment under Title VII; Count II alleges
that Agee was retaliated against in violation of Title VII
for complaining about discrimination and harassment,
including Walgreens' refusal to take corrective action
for Strunk denying Plaintiff overtime opportunities; Count
III alleges that Walgreens violated the Americans with
Disabilities Act by failing to provide reasonable
accommodations that would have allowed Agee to return to work
earlier than she did.
judgment is appropriate if the “movant shows that there
is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The burden is on the moving party to show that there
is no genuine issue of material fact. Celotex Corp.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986). “The evidence of the non-movant is
to be believed, and all justified inferences are to be drawn
in [their] favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91
L.Ed.2d 202 (1986).
I - Sex Discrimination and Sexual Harassment
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.” Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 2270, 141
L.Ed.2d 633 (1998). If there is no “tangible employment
action, ” the employer can raise the
Faragher/Ellerth defense, which is comprised of two
elements: “(a) that the employer exercised reasonable
care to prevent and correct promptly any sexually harassing
behavior, and (b) that the Agee employee unreasonably failed
to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm
otherwise.” Hill v. Am. Gen. Fin., Inc., 218
F.3d 639, 642-43 (7th Cir. 2000). The defense is only
available if there is no tangible employment action.
Walgreens does not directly address whether Plaintiff was
subject to a tangible employment action, it argues that it
exercised reasonable care to prevent and correct any
harassing behavior by having a comprehensive anti-harassment
policy, training employees about this policy, and promptly
investigating the claims about Strunk, ending in his
immediate resignation. Agee contends that she suffered a
tangible employment action when she was ostracized by her
coworkers at the direction of Magnus less than 24 hours after
complaining to human resources. Agee further argues that,
although Walgreens had an anti-harassment policy that she was
aware of, she could not complain to ...