Opinion
Cause No. 1:03-CV-472-TS.
January 31, 2005
MEMORANDUM OF DECISION AND ORDER
The Plaintiff, Coleen B. Brown, alleges that throughout her employment with the Defendant corporation, Dial-X Automated Equipment (Dial-X), the President of the company, Michael Katz (Katz), subjected her to sexual harassment. She also alleges that she was retaliated against and constructively discharged, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and tort laws of the state of Indiana. The Plaintiff maintains that the Defendant also withheld rent money from her weekly paycheck in violation of Indiana Code § 22-2-6-1 et seq.
On November 10, 2004, the Defendants filed a Motion for Summary Judgment [DE 14] seeking dismissal of all the Plaintiff's claims. On November 12, 2004, the Plaintiff filed her own Motion for Partial Summary Judgment [DE 18] requesting judgment in her favor on the Indiana wage claim. This Memorandum and Order addresses the sexual harassment, retaliation, and constructive discharge claims. The related state claims are not at issue because the Plaintiff conceded them in her response to the Defendant's summary judgment motion. The Indiana wage assignment claim will be the subject of a separate order.
BACKGROUND
On June 13, 2003, the Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that she was the "recipient of unwanted and continual harassment because of her gender (female), sufficiently severe and pervasive to alter the terms and conditions of her employment." (Comp., Ex. A.) She also stated that she was harassed and retaliated against by Katz's wife, Joni Katz, who was the Office Manager at Dial-X, and that she was constructively discharged. On November 17, 2003, the Plaintiff received her Notice of Suit Rights and on December 8, 2003, sued the Defendants in Noble Superior Court for sexual harassment and unlawful wage assignment. On December 19, 2003, the Defendants removed the case to this Court. On January 12, 2004, the Defendants filed their Answer and Affirmative Defenses.On November 10, 2004, the Defendants moved for summary judgment on all the Plaintiff's claims. The Defendants argued that the Plaintiff was not constructively discharged, the alleged incidents of physical touching in 2000 and 2001 are time-barred, and even if the incidents were considered, a reasonable jury could not find that the Plaintiff was subject to a hostile work environment. The Defendants further argued that the Indiana state charges related to the sexual harassment must be dismissed and also requested summary judgment on the wage assignment claim because it was the Plaintiff's idea to take deductions from her paycheck to pay for rent. The Plaintiff filed her own Motion for Partial Summary Judgment on November 12, 2004, on the wage assignment claim. Both motions have been fully briefed.
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party." Dempsey v. Atchison, Topeka, Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotation marks omitted). "`Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.'" Abrams v. Walker, 307 F.3d 650, 653 (7th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995); Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 443 (7th Cir. 1994). A court's role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe, 42 F.3d at 443.
STATEMENT OF FACTS
Michael Katz is the sole owner and the president of Dial-X Automated Equipment. The Plaintiff began her employment at Dial-X on October 25, 1999, in the accounting department. In January 2001, Katz promoted the Plaintiff to controller when another employee, Barb Fogel, left Dial-X. The Plaintiff quit her job at Dial-X on April 7, 2003, after almost three and one-half years of employment.
The Plaintiff contends that shortly after starting her job, Katz began making sexual comments. Some of his comments were said in front of everyone in the office while others were directed only at her. For example, he would say, "Let's lock up and have an orgy" or "who wants to do me first?" to his employees. Katz would also ask the Plaintiff if she wanted to "do him."
At first, the Plaintiff believed that Katz was just joking, or showing off. The Plaintiff eventually complained to Fogel, who was her supervisor at the time. The Plaintiff wanted Fogel to tell Katz that his comments bothered her, made her feel uncomfortable, and that she wanted them to stop. Fogel told the Plaintiff that when she spoke to Katz, he responded that "he would work on it." The company was shutdown for Christmas break and Katz went to Florida, but the comments started within a week after he returned. The Plaintiff complained to Fogel again, who suggested that she speak with the Project Manager and Vice President, Eric Bixler. When the Plaintiff spoke to Bixler, he told the Plaintiff that he did not know how he was going to approach Katz, but the Plaintiff insisted that Katz's comments really bothered her. Bixler told the Plaintiff that he talked with Katz and that things would improve. The Plaintiff did not notice a change in Katz's behavior.
The Plaintiff contends that during the course of her employment, she had to meet with Katz one to three times a day, and that for a third of those meetings she was alone with Katz with his office door closed. The Plaintiff states that Katz made a sexual comment every time that she went into his office. She also contends that every day that Katz was at work, he made sexual comments throughout the day, which included the following: Katz told the Plaintiff that he knew she was cold because her nipples were hard, but that he could warm them up for her; asked her to bend over to pick up a pencil or pen that he dropped on the floor; talked about taking Viagra and said he could make her a happy woman; asked the Plaintiff about her sex life with her boyfriend, who also worked at Dial-X; talked about oral sex and requested volunteers to see if they were better than his wife; licked his fingers and said she had a "finger-dip" top on; told the Plaintiff that he liked his women in tight jeans, high heels, lipstick, and tight sweaters; said "let's do a three-some" if there was another girl in the office, told the Plaintiff he had a huge cock that he had to tuck around his leg; and told the Plaintiff she had nice breasts. The Plaintiff submits that these comments embarrassed her and made her uncomfortable.
The Plaintiff, describing her response to Katz's comments, said in her deposition that, at first, she would turn red and not say anything. Later, she would walk out or tell Katz that she was "serious" and wanted to talk about what she came to his office for. (Pf.'s Dep. at 84.) When that approach did not work, she said "Yeah, right," or "In your dreams." During one of her office visits in summer 2000, the Plaintiff recalls telling Katz that she did not appreciate the comments he made to her, she was there to do her job, that is all she wanted to do, and she was not there for anything else. (Pf.'s Dep. at 85-86.) The Plaintiff does not recall if Katz reaction on this particular occasion was to laugh or to say that he would work on it — two of his common responses according to the Plaintiff. The Plaintiff admits that Katz's comments sometimes subsided for awhile after she complained, but states that they started again within a couple months.
In addition to the comments and proposition, the Plaintiff also describes specific incidents of physical touching. In August 2000, an apartment Katz owned became available for rent. According to the Plaintiff, Katz told her to go to the apartment so she would be able to describe it when potential renters called the office. Cindy Wilkinson, another Dial-X employee, went to the apartment with the Plaintiff to clean it. The Plaintiff was nervous because Fogel had told her to "be careful." After the Plaintiff and Wilkinson arrived at the property, Katz showed up and explained that he wanted to make sure that the Plaintiff and Wilkinson knew what furnishings were to stay in the apartment. Katz and Wilkinson disappeared and the Plaintiff heard one of them call her name. When she approached the bedroom where she heard her name, Katz grabbed her arm, kissed her, and forced his tongue into her mouth. Katz also tried to unbutton the Plaintiff's blouse. The Plaintiff pulled away and looked at Wilkinson who had her shirt off. Katz grabbed one of the Plaintiff's hands to try to put it on Wilkinson's breast and the Plaintiff jerked it away. The Plaintiff noticed that Katz's pants were down and that Wikinson's hand was inside his pants and underwear, rubbing him. The Plaintiff said, "I can't do this" and ran out of the apartment. She heard Katz shout out that she had been sheltered.
The Plaintiff returned to work and did not tell anyone of the incident because she was ashamed. She later told Fogel about it. The Plaintiff asserts that the next day, Katz told her that he had her in the palm of his hand because he owned the house where she lived, she worked for him, and he controlled every aspect of her life.
The Plaintiff and her three children lived in a house that she rented from Katz.
The Plaintiff also recalls incidents from 2001. She contends that Katz grabbed her and tried to give her kiss when she walked past him during a power outage at Dial-X. Because she turned her head, he kissed her on the cheek. He then asked if she was going to give Bixler a kiss too. In July 2001, Katz invited the Plaintiff to come to his house, because his wife was out of town, and to sit in his hot tub and give him a massage. He told the Plaintiff not to come over until 9:00 p.m. At 9:00 that night, Katz called the Plaintiff at her home and told her not to come over until later because his neighbors were there. She told him she did not plan to come and Katz responded that he paid women who needed money to give him massages.
Without providing a date, the Plaintiff alleges that, while in her presence, Katz asked two male co-workers what they thought of her breasts. The Plaintiff contends that on another occasion, Katz pulled her shirt out away from her chest and asked a customer who was present what he thought of her breasts.
The Plaintiff asserts that during the last six months of her employment, she made three different complaints to Katz about his sexual comments. Katz would either laugh and say he was just kidding or that he would work on it. In the last meeting where she complained, Katz indicated that he would not change. The Plaintiff quit her employment after this meeting.
Katz denies many, but not all, of the allegations. Katz admits that he asked the Plaintiff whether she wanted to do him once or twice a week for probably the entire time of her employment; it is slang that he uses. (Katz Dep. at 10.) He also admits that he has said "let's have an orgy." ( Id. at 10-11.) He acknowledges that he has probably said "Who wants to do me first?" a couple times a month during the Plaintiff's employment. ( Id. at 11.) Katz indicates that he told the Plaintiff he likes his women to wear high heels, tight jeans, and tight sweaters, but denies ever asking the Plaintiff to dress like that. ( Id. at 12.) He states that he possibly asked the Plaintiff to dance for him once or twice a year. ( Id. at 13-14.) Katz submits that anytime he saw a low cut blouse, he would refer to it as a finger dipper. ( Id. at 14.) Katz admits that, a couple times a week, he would suggest to the Plaintiff that she should come to his house when his wife was out of town. ( Id. at 15.)
Katz denies telling the Plaintiff that if anybody sued him for sexual harassment, he would kill them, but testified in his deposition that he made similar comments at work, not directed at anyone in particular, that if anyone sued him for sexual harassment he would "pop them." ( Id. at 17-18.) He made the comment in response to an informational document that he received at work about sexual harassment lawsuits. ( Id. at 18.) Katz denies all other charged made by the Plaintiff.
The Plaintiff testified that she heard about these comments second-hand, but did not personally hear Katz make them.
Wilkinson and Joni Katz both have heard Katz make comments of a sexual nature at work. They took his comments as jokes. Wilkinson never felt that Katz's comments were meant as a come on to her and she denies that the incident in the apartment ever occurred. Bixler also heard Katz make comments like "do me" "blow me" and other generalized comments to many different people multiple times a day. (Bixler Dep. at 44.) Bixler also heard Katz state on multiple occasions that if anyone filed sexual harassment charges against him, he would hunt her down and shoot her, or words to that effect. (Bixler Dep. at 62-63.)
The Plaintiff also makes allegations regarding Joni Katz. The Plaintiff submits that she had problems working with Joni Katz as early as April 2000 when they were both in the accounting office. The Plaintiff complained to Katz and Bixler that Joni Katz was always "riding her" and was overly critical of her work. The Plaintiff alleges that Joni Katz changed or deleted her work after Katz told her to do something one way and Joni told her to do it another. The Plaintiff believes Joni Katz treated her this way because the comments her husband made to the Plaintiff made Joni jealous.
On April 7, 2003, the Plaintiff had a dispute with Joni Katz. The Plaintiff wrote a letter to Katz and met with him describing her working conditions with Joni and told him she did not want to work in the same office as Joni any longer. The Plaintiff requested that Joni Katz be moved out of the accounting office to a vacant office that she had occupied before moving into the accounting office. She also told Katz that she thought his comments caused Joni to be mean to her and that they made her feel uncomfortable. Katz told the Plaintiff that he could not change for anybody and he refused to move Joni out of the accounting office. The Plaintiff decided to quit her employment and April 7, 2003, was her last day of work at Dial-X.
DISCUSSION
A. Time-Barred Events
The Defendants argue that the two incidents of physical touching, the three-some incident in August 2000, and the kiss on the cheek in 2001, did not occur within 300 days of the June 18, 2003, EEOC Charge. The Defendants submit that these incidents are time-barred and cannot be used to support the Plaintiff's Title VII claim. The Defendants argue that the Plaintiff cannot use the continuing violation doctrine to bring these incidents within the scope of her Charge because they were discrete acts of physical touching that were "complete at the time of their occurrence." (Def.'s Mem. at 12.)
Three hundred days before June 18, 2003, is August 22, 2002.
The Plaintiff responds that many acts of harassment occurred within the 300 days before she filed her Charge of Discrimination and that the acts outside the time limit were non-discrete acts that were a part of one unlawful employment action.
Title VII delineates certain prerequisites that an employee must satisfy before she may institute a lawsuit. On requirement is that an employee must file a charge with the EEOC within 300 days of the discriminatory act. 42 U.S.C. § 2000e-5(e). The continuing violation doctrine allows a plaintiff to get relief for time-barred acts by linking them with acts within the limitations period. Shanoff v. Ill. Dept. of Human Servs., 258 F.3d 696, 703 (7th Cir. 2001) (citing Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1992)). In National Railroad Passenger Corporation v. Morgan, the Supreme Court explained that the continuing violation doctrine operates differently according to the type of discriminatory act alleged — "discrete" discriminatory acts or acts contributing to a hostile work environment. 536 U.S. 101, 113-14 (2002).
Discrete discriminatory acts that fall outside the statute of limitations are time-barred even if they relate to other discrete acts that fall within the statute of limitations. Id. at 112. Examples of discrete acts include "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 114 (noting that these acts "are easy to identify" because "[e]ach incident of discrimination and retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'")
In contrast to discrete acts of discrimination, acts that contribute to a hostile work environment are part of "one unlawful employment practice" and if any single act contributing to the claim occurs within the filing period, a court may consider the entire time period of the hostile environment in determining liability Id. at 117-18.
To advance their argument that the two incidents of physical touching are time-barred, the Defendants label them as discrete acts of discrimination. The Defendants submit that because the Plaintiff cannot show that any physical touching occurred within the 300-day time limit, the Plaintiff is barred from relying on them to support her hostile work environment claim. The Defendants attempt to draw a bright line between incidents of physical touching and the use of sexually harassing language as two separate unlawful employment practices. However, this distinction is not supported by the case law. When determining whether an actionable hostile work environment exists, courts look to "all the circumstances," including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Title VII "does not separate individual acts that are part of the hostile environment claim from the whole for purposes of timely filing and liability." Morgan, 536 U.S. at 118. The incidents of physical touching in 2000 and 2001 were part of the whole. They did not constitute a separate unlawful employment action. At the time the physical touching occurred, Katz was engaged in other acts of harassment, including making sexual comments directed at the Plaintiff and other females and propositioning the Plaintiff. There was no significant break in these frequently occurring actions. The Court finds that incidents occurring before August 22, 2002, including the alleged acts of physical touching, may be considered in support of the Plaintiff's Title VII claim because they were part of the same actionable work environment practice.
In addition to arguing that the continuing violation doctrine does not apply, the Defendants also argue the equitable defense of laches. In Morgan, the Supreme Court recognized that employers could assert the defense of laches to bar a plaintiff from maintaining a suit if she unreasonably delayed in filing the suit and the delay harmed the defendant. Morgan, 536 U.S. at 121-22. The Defendants recite this defense and then rehash their argument against applying the continuing violation doctrine.
"A defendant has been prejudiced by a delay when the assertion of a claim available some time ago would be `inequitable' in light of the delay in bringing that claim. Specifically, prejudice ensues when a `defendant has changed his position in a way that would not have occurred if the plaintiff had not delayed." Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (citations omitted) (cited in Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 824 (7th Cir. 1999)). The Defendants have made no attempt to explain how the Plaintiff's delay prejudiced them under this, or any other, standard.
The Court will consider all the alleged incidents of harassment in determining whether there is a genuine issue for trial.
B. Hostile Work Environment
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a(1). An employer violates Title VII if it is responsible for a hostile work environment. Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 426 (7th Cir. 2004); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). "`Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.'" Johnson v. City of Fort Wayne, 91 F.3d 922, 938 (7th Cir. 1996) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)).
To survive a summary-judgment motion, an employee alleging sexual harassment must show: (1) she was subject to unwelcome harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) the harassment was based on her sex; (3) the harassment was severe or pervasive so as to alter the conditions of her work environment by creating a hostile or abusive situation; and (4) there is a basis for employer liability. Cooper-Schut, 361 F.3d at 426; Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1036, 1043 (7th Cir. 2000); see also Dunkin v. City of Chicago, 341 F.3d 606, 611 (7th Cir. 2003). The Defendants challenge the Plaintiff's ability to make out a genuine issue of fact on the third and fourth elements of her claim.
The issue raised by the Defendants on the third element is whether a reasonable jury could find that the harassment unreasonably interfered with the Plaintiff's work performance by creating an intimidating, hostile, or offensive working environment that seriously affected her psychological well-being. Hrobowski v. Worthington Steel Co., 358 F.3d 473, 476 (7th Cir. 2004). Another way of framing this issue is to ask whether the harassing words or conduct were "severe or pervasive." Id. The Plaintiff must prove that Katz's words and actions were both objectively and subjectively hostile. Id. at 477. The Defendants argue that they are entitled to summary judgment because the Plaintiff's work environment was not objectively hostile or abusive.
"An objectively hostile environment is one that a reasonable person would find hostile or abusive." Adsumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998). In evaluating whether a workplace is hostile, a court must look at the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Harris, 510 U.S. at 23. A court should look at all the circumstances and no single factor is required. Id. Drawing the line between actionable and nonactionable sexual harassment "is not always easy." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995).
On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express of implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers. . . . It is not a bright line, obviously, this line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other.Id. at 430-31.
The Court finds that a reasonable jury could determine that the environment described by the Plaintiff falls on the actionable side of the line. Both the frequency and the severity of the comments and actions weigh against granting summary judgment for the Defendants. See Hostetler, 218 F.3d at 808 (harassment need not be sever and pervasive to impose liability and even one act of harassment will suffice if it is egregious); Shanoff v. Ill. Dept. of Human Servs., 258 F.3d 696, 704 (7th Cir. 2001) (while there is no magic number of incidents that give rise to a cause of action, repeated incidents of verbal harassment that continue despite the employee's objections are indicative of a hostile environment). Here, there were at least two incidents of physical contact (three if the incident where Katz pulled the Plaintiff's collar out to ask a customer what he thought of her breasts is counted), frequent unwelcome solicitations and propositions, and daily comments regarding sexual acts or intimate body parts.
Specifically, the three-some incident involved unwelcome, forcible, physical contact of an intimate nature. Hostetler, 218 F.3d at 807. A jury could find that a reasonable person in the Plaintiff's position might well consider having her boss insert his tongue into her mouth as humiliating and possibly threatening. See id. Further, pointing out the Plaintiff's nipples and suggesting he could warm them up, and referring to finger dip tops after licking his fingers are more than mere offensive utterances. They are not simply "tinged with sexual innuendo" as argued by the Defendants. They are humiliating and obscene. And if the Plaintiff is believed, they permeated the workplace.
Accepting the Plaintiff's version of Katz's conduct as true, a fact finder could deem the Plaintiff's work environment hostile. This brings the Court to the fourth prong, whether there is any basis for employer liability.
In line with traditional agency principles, an employer may be held vicariously liable for the acts of those who can be considered "an employer's proxy," such as "a president, owner, proprietor, partner, corporate officer, or supervisor `hold[ing] a sufficiently high position in the management hierarchy of the company for his actions to be imputed automatically to the employer.'" Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 789-90 (1998)). Here, there is no question that Katz held such a position. However, because no tangible employment action was taken, Dial-X may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. Gentry v. Export Packaging Co., 238 F.3d 842, 846 (7th Cir. 2001). The employer must establish (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998)); see also Faragher, 524 U.S. at 807.
Although the Plaintiff alleges that she was constructively discharged, she does not content that it was the result of an official act. Therefore, Dial-X must be afforded the chance to establish the affirmative defense. See Penn. State Police v. Suders, ___ U.S. ___, 124 S. Ct. 2342, 2355 (2004). The Plaintiff does not argue otherwise.
Dial-X argues that it has met the first element of the affirmative defense because the employee handbook contained an anti-harassment policy and the Plaintiff signed an Employee Acknowledgment Form on January 7, 2000, in which she acknowledged receipt of the handbook. Defendant Dial-X, however, does not cite to the Record to support this proposition. It does not provide the Court with the Acknowledgment Form or the policy. Statements of fact are to be "supported by appropriate citations to discovery responses, depositions, affidavits, and other admissible evidence." N.D. Ind. L.R. 56.1(a). Moreover, although Katz indicated at various time that he would work to improve his behavior, there was little indication that further harassment would be prevented and corrected promptly, despite the purported existence of an anti-harassment policy.
The Defendant cites to the deposition of Joni Katz for the statement that the Dial-X employee handbook contains an anti-harassment policy. However, there is no cite to the record regarding the contents of the policy or the Plaintiff's awareness of the policy, including the Acknowledgment Form. (Def.'s Mem. at 5.)
Even if Defendant Dial-X met its burden of proof on the first prong, genuine issues of fact remain regarding whether the Plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The Plaintiff contends that she spoke to Barb Fogel, her supervisor, Eric Bixler, the vice president, and Michael Katz himself.
Defendant Dial-X has not met its burden of proving the affirmative defense and genuine issues of material fact preclude summary judgment on the Plaintiff's hostile work environment claim.
C. Retaliation
Although the Defendants do not specifically mention the Plaintiff's retaliation claim in their Motion for Summary Judgment, the Defendants' arguments regarding constructive discharge also go to the retaliation claim. This is because the Plaintiff claims that Joni Katz's treatment of her, which ultimately led to her constructive discharge, constituted retaliation. In response to the Defendants' Motion for Summary Judgment, the Plaintiff admits, however, that she believes Joni Katz treated her poorly because "Mike talked to me the way he did (the sexual propositions, sexual remarks, and the `looks'), and he did it in front of [Joni Katz]." (Pf.'s Aff., ¶ 6.) Thus, the Plaintiff's own affidavit negates any argument that she was retaliated against because she engaged in protected activity under Title VII. See 42 U.S.C. § 2000e-3(a) (making it unlawful to discriminate against an employee "because he has opposed" an unlawful employment practice or made a charge under Title VII); see also Smith v. NE Ill. Univ., 388 F.3d 559, 567 (7th Cir. 2004) (holding that under Title VII, "unlawful retaliation occurs when an employer takes an adverse employment action against an employee for opposing impermissible discrimination.") (citing Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 980-81 (7th Cir. 2004)).
The Plaintiff also testified in her deposition that she believed Joni Katz acted out of jealousy and that she treated other women in the company poorly also because of Katz's comments to women. (Pf.'s Dep. at 49, 56-57.) Again, this negates any inference that the Plaintiff was singled out because of her protected activity. The Plaintiff's retaliation claim must be summarily dismissed.
D. Constructive Discharge
"Constructive discharge" refers to the situation in which an employer, without firing an employee, makes her working conditions so miserable that it drives her to quit. Hunt v. City of Markham, 219 F.3d 649, 655 (7th Cir. 2000). To establish a claim of constructive discharge under Title VII, a plaintiff must prove that unlawful discrimination made working conditions so intolerable that a reasonable person would be forced into involuntary resignation. Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (citing Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 517 (7th Cir. 1996)). "The working conditions must be more than merely intolerable; they must be intolerable in a discriminatory way." Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996) (citing Chambers v. Am. Trans. Air, Inc., 17 F.3d 998, 1005-06 (7th Cir. 1994)).
Here, the Plaintiff claims that the working conditions were intolerable because Joni Katz interfered with her work because she resented the Plaintiff. This resentment, in turn, "was caused by and aggravated by Katz's continued sexual harassment of [her]." (Pf.'s Mem. at 2.) The Plaintiff argues:
Given the years of the harassment, and given the lackluster response of Dial-X and its managers/owners (except for brief periods of time when harassment stopped for a few weeks after she complained), and now that Joni was interfering with [the Plaintiff's] work, apparently because of Katz's infatuation with [the Plaintiff], there simply was no place for [the Plaintiff] to go except "out."
(Pf.'s Mem. at 3.)
Joni's purported resentment cannot form the basis of the Plaintiff's constructive discharge claim; working conditions must be intolerable in a discriminatory way. Joni Katz, by the Plaintiff's own admission, was not motivated by an unlawful motive, e.g., sex, race, retaliation, but by her resentment of her husband's behavior as it related to the Plaintiff.
Responding to the Defendants' argument that the Plaintiff's case is distinguishable from constructive discharge cases, where threat of injury or other egregious work conditions were involved, the Plaintiff argues that Katz admitted to stating words to the effect that if anyone ever filed a sexual harassment suit against him, he would hunt them down and shoot them. This does not save the Plaintiff's claim. There is no indication that the Plaintiff herself heard this statement nor does the Plaintiff establish when she actually became aware that Katz had made such a statement. There is no evidence that this statement by Katz contributed to the Plaintiff's decision to leave her employment.
The Defendants are entitled to summary judgment on the Plaintiff's constructive discharge claim.
E. Summary — Status of Claims
The Plaintiff may proceed on her Title VII sexual harassment claim; her retaliation and constructive discharge claims are dismissed. In response to the Defendants' Motion for Summary Judgment, the Plaintiff conceded dismissal of the state law claims for assault and battery, intentional interference with contractual relations, and emotional distress. The Court will address the cross-motions for summary judgment on the Plaintiff's wage claim in a separate order.
CONCLUSION
For the foregoing reasons, the Defendant's Motion for Summary Judgment [DE 14] is GRANTED in part and DENIED in part. The Court WITHHOLDS RULING on the wage assignment portion of the Defendant's Motion [DE 14] and on the Plaintiff's Motion for Partial Summary Judgment [DE 18], these cross motions to be disposed of by separate order of this Court.
SO ORDERED.