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Agee v. Walgreen Co.

United States District Court, S.D. Illinois

February 6, 2017

LISA AGEE, Plaintiff,
v.
WALGREEN COMPANY, Defendant.

          MEMORANDUM AND ORDER

          STACI M. YANDLE United States District Judge.

         Before 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.

         Background

         Plaintiff 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.

         Although 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 Strunk.

         In July 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.[1]

         On 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.

         Between 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.

         Plaintiff's 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.

         Discussion

         Summary 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).

         Count I - Sex Discrimination and Sexual Harassment

         “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.” 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.

         While 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 ...


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