Opinion
No. 99 C 4640.
January 2, 2001.
MEMORANDUM OPINION AND ORDER
This case is before the Court on the motion of defendants Koppers Industries, Inc. ("Koppers") and Chuck Tomas for summary judgment pursuant to Fed.R.Civ.P. 56. For the following reasons, we grant the motions for summary judgment as to the Title VII claims in Count I. Furthermore, we decline to exercise supplemental jurisdiction over the remaining state law claims contained in Counts II, III and IV, and we hereby dismiss those Counts without prejudice.
BACKGROUND
Plaintiff Deborah Fox asserts claims against Koppers and Tomas under Title VII of the Civil Rights Act of 1964, as well as state law claims for assault, battery and infliction of emotional distress. Plaintiff began working for Koppers as a lab technician at its Stickney, Illinois facility ("Stickney Facility") on April 27, 1998. Plaintiff continues to be employed as a lab technician at the Stickney Facility.
When Plaintiff began working for Koppers, she was given a copy of Koppers' Equal Employment Opportunity and Anti-Harassment Policy ("Anti-Harassment Policy") during Koppers' employee orientation program. Plaintiff now claims that she "was given a bunch of papers" and did not receive or read the Anti-Harassment Policy. However, during Plaintiff's deposition, she testified that she acknowledged that she had received and read Koppers' Anti-Harassment Policy during her orientation and that she also saw a copy of the Policy posted on the common-area bulletin board.
In relevant part, the Anti-Harassment Policy provides:
Koppers Industries is committed to providing a work environment that is free of discrimination and unlawful harassment. Actions, words, jokes, or comments based on an individual's sex, race, ethnicity, age, religion, disability or other legally protected characteristic will not be tolerated. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when . . , such conduct has the purpose or effect of unreasonably interfering with an individual's job performance or creates an intimidating, hostile or offensive working environment.
Employees who believe they have been the subject of or witness to discrimination or harassment should report such acts to their supervisor, or, if the employee believes for whatever reason, that this is not appropriate, then the employee should contact the Human Resources Department, the Compliance Officer, the General Counsel or a member of the Management Committee. Such reports will be investigated promptly and as confidentially as possible. Corrective action will be taken if warranted. Employees can raise concerns and make reports without fear of reprisal. Anyone engaging in sexual or other unlawful harassment will be subject to discipline, up to and including, discharge.
In addition to the Anti-Harassment Policy, Koppers also maintains a Sexual Harassment Policy, which defines and further prohibits sexual harassment in all forms.
Plaintiff's claims essentially arise from two incidents: 1) vulgar comments made by a group of six co-employees to plaintiff shortly after she began working for Koppers in 1998; and 2) a February 14, 1999 incident involving co-worker Chuck Tomas. Regarding the first incident, Plaintiff testified in her deposition that approximately six employees made vulgar comments to her beginning in 1998. Plaintiff further testified that, after she "cursed them out", the employees stopped directing inappropriate comments toward her.
Regarding the second incident, Plaintiff went to the Koppers' employee lunchroom for her lunch break on February 14, 1999. Several other employees were present in the lunchroom with Plaintiff, including co-workers Charles Tomas, Michael Stitts, and Charles Savare, a supervisory-level employee. Stitts told the group that he was considering taking some time off from work because of a personal matter. In response, Plaintiff walked over to Stitts and stated that she did not want him to leave because, if he were gone, she would not have anyone to give her left-over baked goods to.
Joining in the conversation, Tomas stated that Plaintiff could give her baked goods to him, tapped her behind with a plastic soda bottle, and walked away. Plaintiff immediately began cursing and throwing objects, such as pens, markers, and a soda can at Tomas. While Plaintiff was cursing at Tomas, he approached her and, according to Plaintiff s deposition testimony, stated something to the effect of: "you didn't like that, I don't care. I will put you across my knee." When Tomas allegedly made those statements, Plaintiff claims he tapped her behind with his hand. As Plaintiff continued cursing and yelling at Tomas, Tomas apologized to Plaintiff for his behavior. Plaintiff refused to accept Tomas' apology and accused him of treating her like she was his child.
In response to Plaintiff's comments that she planned to report the incident to management, Savare informed Plaintiff that she might first have to report the incident to her union president. When Plaintiff returned to her work area, she called her supervisor, Joseph Gerba, at his office and left him a voice-mail message reporting the incident. Gerba received Plaintiff's message when he arrived at work Monday morning and immediately informed the Plant Manager of the Stickney Facility, Michael Mancione, of the incident. By 9 a.m. that morning, Gerba met with Plaintiff to discuss the incident and to take her statement. After meeting with Plaintiff, Gerba met with Mancione to discuss his investigation.
Mancione immediately suspended Tomas until further notice, pending a further investigation by Koppers. Mancione then met with Savare and verbally reprimanded him for his inaction during the incident. Mancione also met with Plaintiff and apologized on behalf of Koppers for the incident.
On Friday, February 19, 1999, five days after the incident, Mancione issued a memorandum to Tomas stating that Koppers had determined that his conduct violated its Anti-Harassment Policy and informing him that such behavior would not be tolerated. The memorandum also informed Tomas that he would be subject to certain discipline for his actions. Koppers then provided Tomas with an additional copy of the Anti-Harassment Policy and instructed him to review the policy before returning to work. For his actions, Tomas was subject to the following discipline:
1). a ten (10) day suspension without pay; and
2). a warning that similar conduct in the future or for any further discussion of the incident with Plaintiff or any other employee would result in his termination.
When Tomas returned from his 10-day suspension, Mancione again spoke with him to stress that any future harassing conduct would result in his immediate discharge. In addition, Mancione instructed Tomas that he was not to have any communication with Plaintiff and that he should avoid being near her or looking at her. On February 19, 1999, Savare also received a disciplinary memorandum, reprimanding him for his inaction during the incident. Accompanying the memorandum was a copy of Koppers' Anti-Harassment Policy and instructions to review the policy immediately.
After issuing this discipline, Mancione met with Plaintiff to discuss the incident and to inform her of the disciplinary action taken against both Tomas and Savare. During that meeting, Plaintiff indicated to Mancione that she felt some employees were ignoring her since the incident, but refused to give Mancione the names of these employees. Mancione asked whether there was anything more he could do to help, or to prevent future incidents. Plaintiff responded "no" to both questions.
Plaintiff subsequently filed a complaint with the EEOC, mentioning only the February 14, 1999 incident with Tomas. Plaintiff then received her Notice of Right to Sue and filed this action. In this case, Plaintiff contends in Count I that Koppers and Tomas violated her rights under Title VII of the Civil Rights Act of 1964. In Counts II, III and IV, Plaintiff alleges state law claims of assault, battery and infliction of emotional distress against both Koppers and Tomas,
DISCUSSION
Summary judgment shall be granted where "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). The Court will not render summary judgment if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). The mere possibility of a factual dispute is not enough to defeat a summary judgment motion. Id. at 250; Waidridge v. American Hoechst Corn., 24 F.3d 918, 920 (7th Cir. 994).
I. Title VII
A. Plaintiff Was Not Subiected To A Hostile Work Environment
Plaintiff's claim fails because she cannot demonstrate that she was subjected to a hostile work environment, A hostile work environment claim requires Plaintiff to establish that "the sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff." Parkins, 163 F.3d at 1032. Thus, "not all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII." Mentor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). Rather, for sexual harassment to be actionable, it "must be sufficiently severe or pervasive to make the workplace intolerable for the members of the group discriminated against." Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7th Cir. 1999).
In determining whether the workplace environment is hostile to the point of giving rise to a Title VII claim, courts must consider all of the circumstances and context in which the alleged conduct occurred, including "the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). These factors are evaluated not only from Plaintiff's subjective view, but also from a reasonable person's objective view. Id. at 21.
Particularly relevant here is the United States Supreme Court's instruction that, "isolated incidents (unless extremely serious) will not" be actionable. City of Faragher v. Boca Raton, 524 U.S. 775, 788 (1998), Similarly, the Seventh Circuit has explained that "[although] sporadic behavior, if sufficiently abusive, may support a Title VII claim, success often requires repetitive misconduct." Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1345 (7th Cir. 1995).
Guided by these standards, the Courts of the Seventh Circuit, including this Court, routinely have granted summary judgment to employers on sexual harassment claims premised on isolated instances of unwanted touching on the grounds that such conduct is neither severe nor pervasive enough to be actionable. See. e.g., Robinson v. Truman College, No. 97 C 896, 1999 U.S. Dist. Lexis 545, at *6 (N.D.Ill., Jan. 14, 1999) (holding that supervisor's touching plaintiff's buttocks on two occasions and repeated inappropriate sexual remarks did not create a hostile work environment).
In this case, the undisputed facts establish that Tomas' conduct was neither severe nor pervasive and did not create an objectively hostile work environment. Indeed, the February 14, 1999 incident was considerably less severe than the conduct that the Seventh Circuit found not to be actionable in Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 706-08 (7th Cir. 1995) (concluding that two isolated incidents-one where supervisor rubbed his foot against plaintiff's foot and the other where the same supervisor grabbed plaintiff's buttocks-was not actionable). In this case:
1). the incident occurred in Koppers' lunchroom, in the presence of other employees, where Plaintiff easily could walk away;
2). the incident was not an overt sexual advance or assault and began merely as a response to Plaintiff's comments to Stitts about her baked goods;
3). Tomas has no authority over Plaintiff and they do not work in the same department; and
4). Tomas had never previously acted inappropriately toward Plaintiff
Thus, from an objective view, the incident was not sufficiently severe or pervasive so as to alter the terms and conditions of Plaintiff's employment and to render her work environment hostile.
Moreover, under Title VII, Koppers cannot be held liable for Tomas' conduct toward Plaintiff unless it either negligently failed to discover or remedy Tomas' allegedly harassing conduct.See, e.g., Parkins v. Civil Constructors of Illinois. Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). The undisputed facts establish that Koppers did not act negligently and that it satisfied its legal duty under Title VII.
In discussing an employer's duty in co-worker harassment cases, the Seventh Circuit has explained:
[an employer] is liable for [its] employee's torts against a coworker only if, knowing or having reason to know of the misconduct, the employer unreasonably fails to take appropriate corrective action. The employer acts unreasonably either if it delays unduly or if the action it does take, however promptly, is not reasonably likely to prevent the misconduct from recurring.
Saxton v. American Tel. Telegraph Co., 10 F.3d 526, 535 (7th Cir. 1993). An employer's duty will be discharged if it takes "reasonable steps to discover and rectify acts of sexual harassment of its employees," Parkins, 163 F.3d at 1032.
The following undisputed facts establish that Koppers upheld its legal duty in this case:
1). Koppers established and published an Anti-Harassment Policy both to deter and detect sexual harassment. 2). After Plaintiff reported the incident to her supervisor, Joseph Gerba, Gerba immediately informed the plant manager, Mike Mancione, of the alleged incident. 3). Mancione and Gerba immediately began investigating the incident and by 9 a.m. the day after the incident, Gerba interviewed Plaintiff 4). That afternoon, Mancione informed Tomas that he was suspended until further notice, without pay, until Koppers concluded its investigation. 5). After completing the investigation, on Friday, February 19, 1999, Mancione issued a memorandum to Tomas and Savare concerning the disciplinary action imposed on each. 6). Tomas was suspended for ten days, without pay, and given a final warning. Savare was given a written reprimand.
These undisputed facts demonstrate that Koppers fulfilled its legal duty and cannot be held liable for Tomas' conduct. First, there was no ongoing harassment about which Koppers could have known. Second, Koppers acted promptly and reasonably to remedy the situation by: (i) suspending Tomas for ten days, without pay; (ii) threatening Tomas with immediate termination for future violations of Koppers' Anti-Harassment Policy; and (iii) ordering Tomas to avoid contact with Plaintiff or face immediate termination. The Seventh Circuit found similar punishment inParkins to be reasonably likely to prevent future harassment. See Parkins, 163 F.3d 1032, 1035-36. Moreover, Plaintiff admits that Tomas has not bothered her since the incident, and she has not been subject to any sexual harassment since the incident.
As to the liability of Tomas for the alleged incident, Tomas argues that he cannot be liable because Plaintiff failed to name him in the EEOC Charge. We agree. Ordinarily, a party not named in an EEOC Charge may not be sued under Title VII. LeBeau v. Libbey-Owens-Ford Co., 484 F.2d 798, 799 (7th Cir. 1973). Thus, this is an additional reason Plaintiff's claim against Tomas fails.
However, in an attempt to present evidence of pervasive and constant harassment, Plaintiff testified at her deposition that a few other co-workers made vulgar comments to her shortly after she began working for Koppers in 1998. Plaintiff testified that after "cursing them out" the employees who made such inappropriate comments stopped directing such comments toward her. Around this time, Plaintiff commented generally to Plant Manager Mancione about the male employees having "dirty mouths." Mancione offered to intervene, but Plaintiff told him that she could handle the situation. Mancione told Plaintiff to call him if the problem continued. The comments ceased and Plaintiff never called Mancione. Thus, Plaintiff's general statement that some employees had "dirty mouths" and her refusal to provide management with any names or specifics demonstrates that Plaintiff gave Koppers no indication that she was being sexually harassed.
Moreover, Plaintiff failed to raise these alleged other incidents in her EEOC charge of discrimination or in her complaint. Although an individual need not specify every fact or claim that forms the basis for her complaint, "'the EEOC charge and the complaint must, at a minimum, describe the same conduct and implicate the same individuals. Haper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995). Plaintiff's EEOC charge and complaint are confined solely to the February 14, 1999 incident with Tomas. Accordingly, these incidents do not support a claim of hostile work environment. Therefore, Count I fails as a matter of law and the defendants are entitled to summary judgment in their favor on Count I.
II. State Law Claims
In Counts II, III and IV, Plaintiff asserts state law claims against Koppers and Tomas for assault, battery and infliction of emotional distress. Because there are no surviving federal claims in this case, we decline to exercise supplemental jurisdiction over the remaining state law claims contained in these Counts.See, e.g., Centres, Inc. v. Town of Brookfield. Wisc., 148 F.3d 699, 704 (7th Cir. 1998); Kennedy v. Schoenberg, Fisher Newman. Ltd., 140 F.3d 716, 727 (7th Cir. 1998). Therefore, we dismiss Counts II, III and IV without prejudice.
CONCLUSION
For the foregoing reasons, we grant the motion of defendants Koppers Industries, Inc. and Chuck Tomas for summary judgment on Count I of Plaintiff's Complaint. Judgment is hereby entered in favor of Koppers Industries and Chuck Tomas on Count I of the Complaint. Counts II, III and IV of Plaintiff's Complaint are hereby dismissed without prejudice as the Court declines to exercise supplemental jurisdiction over them. Koppers' request for sanctions is denied. This is a final and appealable order.