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December 19, 2005
CYNTHIA G. GIBBONS, PLAINTIFF,v.BANTERRA BANK CORPORATION A/K/A BANTERRA BANK, DEFENDANT.
Before the Court is defendant's motion for summary judgment (Doc. 34). Plaintiff has filed a response, (Docs. 43,44), and defendant has filed a reply (Doc. 45).
I. Background
The following facts are undisputed. On May 29, 1978, plaintiff, a high school graduate with no banking experience, was hired as a bank teller by the Bank of Egypt in Marion, Illinois. In 1985, Egypt Bancorp, Inc. acquired the Bank of Egypt. Also about this time, plaintiff was promoted to loan secretary in the loan department. In 1989, Banterra Corp. acquired Egypt Bancorp.
Plaintiff's loan department supervisor was Jon Patton, and he remained her supervisor for the next fifteen (15) years. After starting as a loan secretary, plaintiff began assuming additional lending responsibilities, and eventually, she began doing her own loans and in 1993, she received her own lending authority.
In 1998, Banterra Bank of Marion merged with four other independent banks which collectively became "Banterra Bank." As a result of the merger, Banterra Bank experienced numerous organizational changes. For example, in November 1999, the lending group was divided into two divisions: Retail Banking and Commercial Banking. Plaintiff was assigned to the Commercial Banking Division, and was later designated as a Commercial Officer I. Another organizational change was the establishment of a company-wide pay grade system, which followed the recommendations of Professional Banking Services. The first formal pay grade system was introduced to employees in 2000.
From 1995 through 2000, plaintiff's salary increased from $20,000 to $45,000, which is an increase of 125% in five years. From 1993 through 2000, plaintiff received the following bonuses:
1993 $2,000 1994 $3,000 1995 $4,000 1996 $4,000 1997 $4,000 1998 $1,701 1999 $1,125 2000 $1,375 (Doc. 35, Exh. I).
In February, 2001, Mr. Patton was transferred out of lending, and as a result, his loan portfolio was distributed among other employees. Plaintiff received over five million dollars, ($5,000,000), of loans from his portfolio, and some of the other loans were assigned to employee Steve Lappin.
On August 24, 2001, plaintiff delivered a resignation letter. This letter read:
Please accept my resignation effective August 31, 2001. I will work until September 7th if you feel it to be necessary. It has been a pleasure working with Banterra. (Doc 35, Exh. M).
Plaintiff's last day of work was August 24, 2001.
Approximately three weeks after her resignation, plaintiff asked defendant for her job back. (Doc. 35, Exh. A, pp.113-117). According to defendant, it did not rehire plaintiff because the bank was reducing its workforce and determined that plaintiff's lending portfolio would be naturally reduced through attrition. (Doc. 34, Exh, C, p.5).
Plaintiff has sued defendant under Title VII for unequal pay, unequal job duties, and for failure to promote. Plaintiff also claims that defendant subjected her to a hostile work environment based on gender which led to her constructive discharge. Defendant's motion for summary judgment is discussed below.
II. Summary Judgment Standard
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56. The initial burden of showing that no genuine issue of material fact exists is on the moving party. Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1267 (7th Cir. 1996). Once the moving party has demonstrated the absence of any genuine factual issues, the nonmoving party, to withstand summary judgment, must present specific facts showing that a genuine issue exists for trial. FED.R.CIV.P.56(e). A genuine issue of material facts exists only where "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 249 (1986).
III. Discussion
Defendant has moved for summary judgment on the ground that plaintiff does not have either direct evidence or indirect evidence of discrimination.
A Title VIII plaintiff may prove employment discrimination by using either the "direct method" or the "indirect method." Cianci v. Pettibone Corp., 152 F.3d 723, 727-28 (7th Cir.1998). Under the direct method, a plaintiff may show, by way of either direct or circumstantial evidence, that the employer's decision to take an adverse job action against her was motivated by an impermissible purpose, in this case, gender discrimination. Id. at 727. The United States Court of Appeals for the Seventh Circuit has defined "direct evidence" as "evidence that, if believed by the trier of fact, would prove discriminatory conduct on the part of the employer without reliance on inference or presumption." Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir.2003); Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir.1997). In other words,"[d]irect evidence 'essentially requires an admission by the decision-maker that his actions were based upon the prohibited animus.'" Rogers, 320 F.3d at 753 (citation omitted). A plaintiff can also prevail under the direct method by building a "convincing mosaic" of circumstantial evidence that allows a jury to infer intentional discrimination by the decisionmaker. See Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir.1994). One type of this circumstantial evidence of intentional discrimination consists of "ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff." Troupe, 20 F.3d at 737. Such circumstantial evidence, however, "must point directly to a discriminatory reason for the employer's action." Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th Cir.2003).
As noted, plaintiff alleges that defendant discriminated against her based on gender by giving her unequal pay, unequal job duties, and by failing to promote her. Specifically, plaintiff claims that she was being paid less than other individuals who were in an inferior lending capacity. She also claims that she was given unequal job duties, such as filling in at the reception area, answering phones, taking messages, directing questions and complaints, and training a junior lender. Plaintiff also alleges that for awhile during 1987, she performed what were technically officer duties, but she had not yet been promoted to officer rank. Finally, plaintiff claims that she was not given a secretary, she received an unfair allocation of Mr. Patton's loan portfolio, and she was excluded from meetings where educational opportunities were discussed.
Plaintiff claims that she has direct evidence of discrimination of salary discrimination and cites to Banterra Discovery document numbers 1610-1634, 1754-1782, and 1825-1826. (Doc. 44, p.6). These documents, however, are not part of the Court record as plaintiff has failed to attach these documents to her pleadings. The Court does note, however, that at her deposition, plaintiff identified six males whom she claims received more favorable salaries, job duties, and other favorable treatment. As discussed below, however, plaintiff was not similarly situated to these males because all of them had attended college and/or had prior banking experience when defendant hired them.
Plaintiff also attempts to offer as direct evidence a statement from her supervisor, Jon Patton. Specifically, at her deposition, plaintiff testified that she asked Mr. Patton, "Why did other male employees (referring to Jim Stroud) make more money than I?" (Doc. 35, Exh. B, p.189, lns. 8-11). She further testified that Patton's response was that the men "had families and that her husband made a good living and that she did not need to worry about it." (Doc. 35, Exh. B, p.189, lns. 12-17).
Initially, the Court notes that this statement is not the equivalent of a declaration that women should not be paid as much as men. Furthermore, for an isolated comment such as this to rise to the level of direct evidence, it must be "contemporaneous with" or "causally related" to the employer's decision-making process. Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 723 (7th Cir.1998) (internal citations omitted); see also Randle v. LaSalle Telecomms., Inc., 876 F.2d 563, 569 (7th Cir.1989) (inappropriate but isolated stray remarks by managers that were discriminatory did not constitute direct evidence of discrimination because they were "completely unrelated to the employment decision challenged by the [plaintiffs]"). Here, plaintiff has offered no evidence whatsoever that Patton's remark had anything to do with the amount of her compensation. Furthermore, it not clear from the record whether Patton had any input or had any decision-making authority as to the amount of her salary. Interestingly, plaintiff herself repeatedly testified at her deposition that Patton may have been joking. (Doc. 35, Exh. A, p. 188). Specifically, she said,"and if he meant it as a joke or for real, I don't know," (Doc. 35, Exh. B., p.188); "But it may have just been a joke," (Doc. 35, Exh. A, p. 189); and "So, again, it possibly was a joke, but we had lots of conversations" (Doc. 35, Exh. A, p. 189). Finally, according to plaintiff's testimony, the statement was made sometime in 1996, over five years before she resigned. (Doc. 35, Exh. A, pp.189-190; Exhs. C, pp.6-7). In sum, the record contains no evidence whatsoever that Patton's statement was in any way related to the Bank's determination of how much plaintiff was paid. Accordingly, the Court cannot find that Patton's isolated remark, made five years before plaintiff resigned, is direct evidence of discriminatory animus based on gender.
Citing Jay Sala's deposition, plaintiff also claims that Mr. Sala testified that he had specifically heard "key members of the bank say that they could pay women less than men and hire women because they can pay them less." (Doc. 44, pp.4-5). Initially, however, the Court notes that plaintiff has mischaracterized Mr. Sala's testimony. Rather than identifying "key members" of the bank that made this comment, Mr. Sala testified that the comments were made "in general" and that it could have been somebody "not even affiliated with the bank." Moreover, the United States Supreme Court has said that direct evidence excludes "stray remarks in the workplace," "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself." E.E.O.C. v. Liberal R-II School Dist., 314 F.3d 920, 923 (8th Cir. 2002) (citing Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775; see also Fuka v. Thomson Consumer Electronics, 82 F.3d 1397, 1403 (7th Cir.1996) ("before seemingly stray workplace remarks will qualify as direct evidence of discrimination, the plaintiff must show that the remarks 'were related to the employment decision in question.'"). Here, plaintiff has failed to show that Sala's statement was in any way related to the decision-making process regarding her compensation. In fact, Sala's testimony was to the contrary. He specifically stated that the comment was "not [a] discussion of strategy, [it was] just an overall observation. And it wasn't even Banterra, necessarily, [it was] in general." (Doc. 45, Exh. X1, pp.32-33). It may well be that in the banking industry, women tend to receive less compensation than men. Without evidence that Sala's observation was tied to a determination of this particular plaintiff's salary, however, the Court cannot find that his remark constitutes direct evidence of discrimination.
The next question is whether plaintiff can proceed under the direct method by building a convincing mosaic of circumstantial evidence that would allow a jury to infer "intentional discrimination by the decisionmaker." Rogers, 320 F.3d at 753. As noted, this evidence can consist of "ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff." Troupe, 20 F.3d at 737. As noted, however, this circumstantial evidence "must point directly to a discriminatory reason for the employer's action." Adams, 324 F.3d 935, 939 (7th Cir.2003).
Here, plaintiff offers the two remarks discussed above. There is no evidence, however, to indicate that either remark had any bearing whatsoever on defendant's determination of plaintiff's salary level. Furthermore, one of the remarks, (Mr. Sala's), was not a remark that was limited to defendant, rather, it appears to be a commentary about the banking industry in general. Without evidence that either of these remarks had some connection to determining plaintiff's salary, the Court cannot find that this evidence points "directly to a discriminatory reason for the employer's action." Adams, 324 F.3d at 939. For these reasons, plaintiff cannot prevail under the direct method.
If a plaintiff cannot prevail with the direct method, she must proceed under the indirect method, (i.e., the familiar McDonnell Douglas framework). Adams, 324 F.3d at 939-40. To show a prima facie case of discrimination using the indirect method, plaintiff must show that: (1) she is a member of a protected class; (2) she was meeting her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) similarly situated employees outside her protected class were treated more favorably. McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 (1973). For the reasons set forth below, plaintiff has not met the fourth requirement of showing that similarly situated males were treated more favorably.
As noted, plaintiff at her deposition identified six males whom she claims received more favorable salaries, job duties, and other favorable treatment: Steve Lappin, David Hesterberg, Brad Ragain, Jay Sala, Ken Crews, and Jim Stroud. (Doc. 34, Exh. A, pp.46,51,58,62,67,78). To constitute evidence of discrimination, however, these individuals must be similarly situated to plaintiff in terms of education, experience, and qualifications. Stahl v. St. Anthony Medical Center of Crown Point, Inc., 103 Fed.Appx. 13 (7th Cir. 2004) (citing Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.2002) (To meet the burden of identifying a "similarly situated" employee, a plaintiff must show that someone outside the protected class is "directly comparable to her in all material respects," including experience, education, and qualifications).
Here, plaintiff began her banking career with a high school diploma and no banking experience. There is no evidence in the record that plaintiff attended college or obtained a college degree. In contrast, Steve Lappin was hired with a bachelor of science degree in business administration and had previous management experience at two other banks. (Doc. 35, Exh. T, pp.7-13). David Hesterberg had a bachelor of science degree in finance and had more than 10 years of banking experience. (Doc. 35, Exhs. C,V). Similarly, Brad Ragain had a bachelor of science degree in business administration as well as branch management experience from three other banks. (Doc. 35, Exhs. C,W). Jay Sala also had a college degree and had secondary market lending experience. (Doc. 35, Exhs, C, X, pp.43-46). Ken Crews, the director of marketing and business development, (not a lender), also had a college degree and 14 years of banking experience. (Doc. 35, Exhs. C,Y). Finally, Jim Stroud, had attended Southern Illinois University and had an associate's degree from John A. Logan College. (Doc. 35, Exh. S; Doc.34, Exh. A, p.64). In addition, Stroud transferred to a Carbondale bank in 1996, over five (5) years before plaintiff resigned. Because these individuals are not comparable to plaintiff in terms of experience, education and qualifications, these individuals are not similarly situated to plaintiff. In sum, plaintiff has offered no evidence to show that she was treated differently from similarly-situated males. Accordingly, plaintiff cannot show a prima facie case of gender discrimination.
Lastly, plaintiff claims that defendant subjected her to a hostile work environment based on gender which led to her constructive discharge. When asked at her deposition why she thought the work environment was hostile, she replied:
Hostile I guess identifying as in turmoil, more business, more business than, you know, than staff could handle. (Doc.34, Exh. A, p.99).
In other words, plaintiff's hostile work environment claim is based on the fact that her department was "very busy." (Doc.34, Exh. A, p.100).
To state claim of hostile work environment under Title VII, plaintiff must allege harassment that is sufficiently "severe or pervasive to alter the terms or conditions of employment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). In other words, a hostile or abusive environment consists of "discriminatory intimidation, ridicule and insult" in the workplace. Dey v. Colt Constr. and Dev. Co., 28 F.3d 1446, 1453 (7th Cir.1994) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Courts consider the frequency of the conduct, its severity, and whether it reasonably interferes with the employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7th Cir.1993). Relatively isolated incidents of trivial misconduct do not support a hostile environment claim. See Saxton v. American Telephone and Telegraph Co., 10 F.3d 526, 533 (7th Cir.1993). With regard to plaintiff's constructive discharge claim, plaintiff needs to show that her [discriminatory] working conditions were "so intolerable that a reasonable person would have been compelled to resign." Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir.1996).
Here, plaintiff's allegations do not rise to the level of a hostile work environment or an environment that would support a constructive discharge claim. Furthermore, plaintiff stated in her resignation letter that she would work additional days if necessary. Indeed, she wrote that: "It has been a pleasure working with Banterra." Finally, three weeks after she quit, plaintiff asked for her job back. Under these circumstances, the Court grants summary judgment on plaintiff's hostile work environment and constructive discharge claims.
For all of the above reasons, defendant's motion for summary judgment is granted.
IV. Summary
Based upon the above, defendant's motion for summary judgment (Doc. 34) is GRANTED. Judgment shall be entered against plaintiff and in favor of the defendant. A separate Judgment shall accompany this Order.
James L. Foreman DISTRICT JUDGE
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Syed Gardezi, Houston, US, Underwood St, Apt 272
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Researchgate: Syed Shahid Hussain Shah
Faisalābād, Pakistan
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Indexed/Abstracted in: BIOSIS Previews, Current Contents/Clinical Medicine, EMBASE, PubMed/MEDLINE, Science Citation Index Expanded (SciSearch), Scopus
Impact Factor 1,632
Ajay SAVLANIA 1, Ramesh K. TRIPATHI 2
1 Post-graduate Institute of Medical Education and Research, Chandigarh, India; 2 Narayana Institute of Cardiac Sciences, Bangalore, India
The aim of this review is to describe and discuss the mechanisms of acute mesenteric ischemia (AMI) and the rationale and conduct of currently available endovascular and open surgical techniques in its management. We also propose an algorithm to support the current multidisciplinary approach in decision-making for mesenteric revascularization to manage this high-risk entity.
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United States District Court, N.D. Illinois, Eastern Division
December 15, 2005.
KIMBERLY A. CASE, Plaintiff,
MIDWESTERN SPORTS MEDICINE & ORTHOPAEDIC SURGICAL SPECIALISTS, LTD., Defendant.
Plaintiff Kimberly A. Case ("Case") filed this lawsuit against
her former employer, Midwestern Sports Medicine & Orthopaedic
Surgical Specialists, Ltd. ("Midwestern"), alleging claims of
hostile work environment sexual harassment and constructive
discharge in violation of Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. §§ 2000e-1 et seq. The court has
jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and
1343. Before the court are Midwestern's motion to strike
Plaintiff's Local Rule 56.1(b)(3) Response and Counterstatement
to Defendant's Local Rule 56.1(a)(3) Statement of Material Facts
and motion for summary judgment. For the reasons stated below,
the court denies Midwestern's motion to strike [#31] but grants
its motion for summary judgment [#19].
Summary judgment obviates the need for a trial where there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
To determine whether any genuine fact exists, the court must
pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories,
admissions, and affidavits that are part of the record.
Fed.R.Civ.P. 56(c) Advisory Committee's notes. The party seeking
summary judgment bears the initial burden of proving there is no
genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In
response, the nonmoving party cannot rest on bare pleadings alone
but must use the evidentiary tools listed above to designate
specific material facts showing that there is a genuine issue for
trial. Id. at 324; Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000). A material fact must be outcome
determinative under the governing law. Insolia,
216 F.3d at 598-99. Although a bare contention that an issue of fact exists
is insufficient to create a factual dispute, Bellaver v. Quanex
Corp., 200 F.3d 485, 492 (7th Cir. 2000), the court must
construe all facts in a light most favorable to the nonmoving
party as well as view all reasonable inferences in that party's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
A. Case's Failure to File Timely Her Local Rule 56.1 Response
and Counterstatement
Judge Kocoras entered an order on August 11, 2005 directing the
parties to file dispositive motions by September 26, 2005 and
responses by October 17, 2005. Case filed her response brief and
Local Rule 56.1(b)(3)(B) Response and Counterstatement on October
18, 2005, the day after they were due, but did not seek the
court's leave to do so, file a motion for an extension of time,
see Fed.R.Civ.P. 6(b), or otherwise explain the tardy
filing. As a result, it is within the court's discretion to
refuse to consider Case's Local Rule 56.1 Response and
Counterstatement. See Lac Du Flambeau Band of Lake Superior
Chippewa Indians v. Stop Treaty Abuse Wisconsin, Inc., 991 F.2d 1249, 1257 (7th Cir. 1993) ("[A] decision to disregard
all materials submitted after a reasonable filing deadline is
certainly not an abuse of discretion because it allows the
district court to preserve the moving party's right to respond to
the resisting party's argument and to decide the summary judgment
motion in a timely fashion.") (internal quotations and citation
omitted). See also Spears v. City of Indianapolis, 74 F.3d 153
(7th Cir. 1996) ("Deadlines, in the law business, serve a
useful purpose and reasonable adherence to them is to be
In this case, however, the delay of one day did not prejudice
Midwestern's ability to reply to Case's response nor did it cause
a substantial delay in the resolution of this matter. The court
also granted Case leave to file a second amended memorandum of
law after she submitted her tardy Response brief and Local Rule
56.1(b)(3)(B) Response and Counterstatement. The court would not
have granted leave for what would have constituted an exercise in
futility if it had intended to disregard Case's Local Rule
56.1(b)(3)(B) materials. Accordingly, the court denies
Midwestern's motion to strike as untimely Case's Local Rule
56.1(b)(3)(B) Response and Counterstatement.
B. Local Rule 56.1
Midwestern also has moved to strike Case's Local Rule
56.1(b)(3)(B) Response and Counterstatement for failing to comply
with Local Rule 56.1. Midwestern's objections are well-taken. If
the court were to rule on the merits of Midwestern's motion, the
court would strike the vast majority of Case's responses,
resulting in her admission of the corresponding paragraph in
Midwestern's Local Rule 56.1 Statement.
In particular, Case failed to refer to any evidence
contradicting the asserted facts or her citations to purportedly
contradicting evidence failed to contradict the asserted
statements contained in paragraphs 11, 16, 19, 21, 22, 23, 24,
26, 34, 41, 42, 43, 44, 50, 56, 57, 60, 62, 69, 73, 77, 78, 82, 83, 86, 87, 88, 89, 90, 91, 92, 94, 96, 99, 100, 101, 102, 105,
107, 109, 118, 122, 123, 124, 125, 126, 127, and 128 of
Midwestern's Local Rule 56.1 Statement. See L.R. 56.1(b)(3)(A);
McGuire v. United Postal Serv., 152 F.3d 673, 675 (7th
Cir. 1998) ("An answer that does not deny the allegations in the
numbered paragraphs with citations to supporting evidence in the
record constitutes an admission."). Thus, the court would strike
Case's responses and, to the extent that Midwestern's statement
of facts are supported by their citations to the record, the
court would deem those facts admitted. Likewise, Case failed to
make specific reference to the affidavits or parts of the record
in her responses to paragraphs 9, 10, 12, 13, 14, 15, and 20. The
court also would strike Case's response to paragraph 69 of
Midwestern's Local Rule 56.1 Statement of Facts. She cites to the
affidavit of Lydia Tarsius, which was not attached as an exhibit
or otherwise made a part of the record. Accordingly, there is no
support for her denial of paragraph 69. Additionally, Case raised
relevance objections or other legal arguments without admitting
or denying Midwestern's asserted facts in her responses to
paragraphs 28, 29, 30, 31, 32, 36, 38, 39, 40, 42, 43, 44, 45,
46, 47, 48, 55, 58, 59, 61, 63, 64, 68, 69, 70, 71, 72, 76, 84,
106, 108, 109, 110, 111, 115, 116, 117, and 129 of Midwestern's
Local Rule 56.1 Statement of Facts. Cady v. Miss Paige, Ltd.,
No. 02 C 4867, 2004 U.S. Dist. LEXIS 7613, 2004 WL 1144044 (N.D.
Ill. Apr. 30, 2004) ("Local Rule 56.1 . . . emphasizes that it is
inappropriate to include legal conclusions and/or argument in the
Rule 56.1 statements of fact."). The court, therefore, would
strike Case's responses and deem those facts admitted to the
extent that they are supported by their citations to the record.
In this case, however, the court declines to exercise its
discretion to enforce Local Rule 56.1 strictly. See Little v.
Cox's Supermarket, 71 F.3d 637 at 641 (7th Cir. 1995) ("It
is clear that the decision whether to apply the rule strictly or
overlook any transgression is one left to the court's discretion."), citing Waldridge v. American Hoechst Corp.,
24 F.3d 918 at 923 (7th Cir. 1994). As the Seventh Circuit has
stated repeatedly, "A local rule of a federal district court is
written by and for judges to deal with special problems of their
court, and we are disposed therefore to give a district judge's
interpretation of [her] court's local rules . . . considerable
weight." Cichon v. Exelon Generation Co., LLC, 401 F.3d 803
at 810 (7th Cir. 2005) (citations omitted). While many, if
not most, of Case's responses do not comply with the clear
instructions of Local Rule 56.1(b), Case's Local Rule 56.1(b)
Response and Local Rule 56.1(b)(3)(B) Counterstatement of Fact
sufficiently identify her disputes with the facts asserted. The
court, therefore, denies Midwestern's motion to strike.
A. Background
From September 12, 2000 to March 20, 2003, Case worked as a
billing supervisor for Midwestern. (Defendant Midwestern Sports
Medicine & Orthopaedic Surgical Specialists, Ltd.'s Local Rule
56.1(a) Statement of Uncontested Material Facts ¶ 2, hereinafter
"DSF ¶ ___") (Plaintiff's Local Rule 56.1(b)(3) Response and
Counterstatement To Defendant's Local Rule 56.1(a)(3) Statement
of Material Facts ¶ 132, hereinafter "PSF ¶ ___"). During her
employment at Midwestern, Case reported directly to her
supervisor, Steve Maiworm ("Maiworm"), Midwestern's Practice
Administrator/Executive Director. (PSF ¶¶ 307, 349, 401).
Maiworm, in turn, reported to Dr. Eugene Lopez, the president and
primary owner of Midwestern, Dr. Bruce Montella, Dr. Mary
Morrell, Dr. Martin Saltzman, and Dr. Daniel Kuesis. (DSF ¶¶ 4,
87). By all accounts, Case was a responsible employee who
performed her job duties competently and efficiently. (DSF ¶ 7).
On March 6, 2003, Case resigned her employment with Midwestern
by submitting a letter, which stated, "To Whom It May Concern: This letter serves as my
resignation from my employment with Midwest Sports Medicine. My
final day of employment will be March 20, 2003. Thank you for the
opportunities that have been afforded to me in the past two
years. Sincerely, Kim Case." (DSF ¶¶ 16, 17; PSF ¶¶ 189, 190).
Case's last day of employment with Midwestern was March 20, 2003.
B. Events Giving Rise to Case's Claims
1. Steve Maiworm
According to Case, her employment at Midwestern was marred by a
sexually-charged work environment in which her supervisor,
Maiworm, frequently grabbed his genitals in front of Case and
regularly made derogatory remarks to and about Case, her
coworkers, and women generally, referring to them as "sluts,"
"whores," and "bitches." (PSF ¶¶ 168, 187). Such gestures and
remarks were punctuated by Maiworm's requests from Case for
sexual favors, comments about other employees' sexual behavior,
and comments about Case's sexual relationship with her husband.
In particular, Maiworm told Case in February of 2001 that two
of her co-workers had performed "blow jobs" on each other in
another co-worker's office because they hated that co-worker so
much. (PSF ¶ 160). In July of 2001, Case attended a convention
with Maiworm, who engaged in a lengthy conversation about "blow
jobs" with two other women in Case's presence. (PSF ¶ 161). A few
months later, in October of 2001, Case, Maiworm, and a third
co-worker were at a bar when Maiworm, in reference to the
co-worker, said to Case, "Look at the way she walks. She is
nothing but a fucking whore. She is nothing but a slut." (PSF ¶
162). Case asked Maiworm if he thought that the co-worker was
able to drive because she had been drinking. (PSF ¶ 162). Maiworm
responded, "Don't worry about it. She's nothing but a fucking
whore, and all she will do if she gets pulled over is tell the cop to hop in the back and
give him a blow job." (PSF ¶ 162).
On February 14, 2002, Case arrived late to work and told
Maiworm that her battery was dead. (PSF ¶ 169). In response,
Maiworm stated, "Don't give me that. You were fucking your
husband for Valentine's Day." (PSF ¶ 169). Plaintiff then
informed Maiworm, "What I do with my husband is none of your
concern. Don't talk to me that way." (PSF ¶ 169). At some point
in mid-2002, Maiworm commented to Case that he should "go over
there and fuck Mrs. Lopez" because Dr. Lopez was on vacation
without his wife. (PSF ¶ 165). In October of 2002, Maiworm
radioed Case on her work radio late at night, asking her to come
over and give him and his friend a "blow-job." (PSF ¶ 165). In
Case's presence, Maiworm and his brother also commented that they
wanted to grab their co-worker's breasts. (PSF ¶ 166). Case
informed Maiworm that such comments were inappropriate. (PSF ¶
Case also heard complaints from her co-workers about Maiworms
behavior. In October of 2000, two of Case's co-workers complained
to her that Maiworm had propositioned them to spend the night
with him in his hotel room after a wedding. (PSF ¶ 158). Another
employee complained to Case that Maiworm had exposed his penis to
her. (PSF ¶ 170). Case confronted Maiworm about this complaint.
Case complained to Maiworm more than 20 times about his
language and asked him repeatedly to refrain from using such
offensive language at work. (PSF ¶ 188). Maiworm never changed
his behavior. (PSF ¶ 188). Maiworm, however, denies that Case or
any other employee complained to him that Case considered his
language offensive, denies that any of the above comments or
incidents occurred, denies that he subjected Case or any other
female employee to verbal abuse, and denies that he ever
requested sexual favors from any employee at Midwestern while he was employed there. (DSF ¶¶ 96, 97, 98).
2. Dr. Lopez
Case also found certain conduct of Dr. Lopez offensive. At the
company Christmas party in December of 2001, Dr. Lopez pulled his
trousers down to show off his underwear.*fn1 (PSF ¶¶ 163,
222). In mid-2002, Dr. Lopez was talking loudly and laughing in a
telephone conversation with his urologist on the telephone. (DSF
¶ 54; PSF ¶ 149). The telephone was located in the hallway across
from Case's office. (PSF ¶ 149). Case heard Dr. Lopez say, "Yeah,
I just had a vasectomy yesterday and my balls are hanging low and
I'm walking very gingerly." (PSF ¶ 149).
3. Events Leading Up to Case's Resignation
On February 13, 2003, Case discovered a classified ad that
someone had placed on her desk. (PSF ¶ 179). Case began to
experience chest pains. (PSF ¶ 179). She telephoned and left a
message for Maiworm, informing him that she needed a two-week
medical leave. (PSF ¶ 179). Case took a two-week medical leave.
(PSF ¶ 157). While Case was on medical leave, Cathy Hemaur,
informed Case that she had discovered several classified ads on
Case's desk and had thrown them in the garbage. (PSF ¶ 157).
While working from home on February 24, 2003, Case discovered
that she was locked out of her computer. (PSF ¶ 180). As a
result, Case was unable to perform her work. (PSF ¶ 180). Maiworm
left a message for Case in which he told her that her password
had been changed and that she was locked out of her computer. (PSF ¶ 181). The next day,
February 25, Case telephoned Maiworm from her telephone number
but he did not answer his telephone. (PSF ¶ 182). Case then
blocked her telephone number and immediately telephoned Maiworm.
(PSF ¶ 182). Maiworm answered his telephone and asked Case, "Are
you quitting?" (PSF ¶ 182). Case replied, "No. It looks like you
are firing me." (PSF ¶ 182).
On March 3, 2003, her first day back at work after her medical
leave of absence, Case discovered a classified ad for an exotic
dancer on her desk. (PSF ¶ 183). Case went to Dr. Lopez and
complained about the ad. (PSF ¶ 139). Dr. Lopez laughed and said,
"Well, you're in management. It's just a disgruntled co-worker."
(PSF ¶ 140). Case responded, "This isn't funny. This is not
something that should be happening in an office." (PSF ¶ 141).
Dr. Lopez said that he would talk to Maiworm about the ad. (PSF ¶
Dr. Lopez went to Maiworm's office and asked him if he knew who
had placed the classified ad on Case's desk. (PSF ¶ 144). Maiworm
said that he did not know anything about the ads. (PSF ¶ 144).
Dr. Lopez then called Case into Maiworm's office and said, "Kim,
we don't know who did this." (PSF ¶ 145). Both Dr. Lopez and
Maiworm were laughing. (PSF ¶ 145). Case said, "I don't think
this is funny. This is humiliating, and I feel tormented. It's
wrong, and it's sexual harassment." (PSF ¶ 145). Dr. Lopez
replied, "Oh Kim, you're a good manager. You're doing a good job.
It's just somebody that's upset." (PSF ¶ 146). Case responded,
"No, this is wrong[,] and something needs to be done about it."
(PSF ¶ 147). Dr. Lopez then joked to Maiworm, "I'll be like
Sadaam Hussein and we'll find out who was responsible." (PSF ¶
Maiworm inquired around the office about who had placed the ad
on Case's desk but did not find out who had done so. (DSF ¶ 13).
Maiworm also advised Midwestern's employees that such conduct was unacceptable. (DSF ¶ 14).
Case submitted her letter of resignation to Dr. Lopez on March
6, 2003. (PSF ¶ 189). Dr. Lopez came to Case and told her that he
was sorry that she was leaving. (PSF ¶ 191). Case responded, "Dr.
Lopez, there's a lot of things that are going on in the office,
sexually, hostility, it's a terrible environment, and you are the
one that will be held responsible because you are the owner of
the company." (PSF ¶ 192). Dr. Lopez then threw his arms up in
the air and said, "You don't have to tell me about this. I
already know about it." (PSF ¶ 192).
After submitting her letter of resignation, Maiworm called a
meeting with the billing department to inform them that Case was
leaving Midwestern. (PSF ¶ 137). At the end of the meeting,
Maiworm said, "Dr. Lopez knows about the ads, so don't put them
on Kim's desk anymore." Then Maiworm laughed. Maiworm denies that
he was involved in or knew of anyone placing ads on Case's desk.
(DSF ¶ 20).*fn2
C. Employer Liability
1. Employee Handbook
Midwestern has a written policy against sexual harassment,
which requires that all employees who are aware of harassment
report it immediately to administration. (DSF ¶¶ 122, 126). The
policy also requires any employee who feels that they have
experienced harassment to report the incident immediately to a
member of administration. (DSF ¶ 126). At office meetings,
Midwestern's employees also were instructed that they were to go
to their immediate supervisor if they were having problems with a co-worker. (DSF ¶ 129). If the immediate
supervisor did not handle the situation, they could go to any
supervisor. (DSF ¶ 129). No one at Midwestern reviewed the sexual
harassment policy with the employees or conducted any seminars or
classes explaining sexual harassment. (PSF ¶¶ 468, 503).
Although Dr. Lopez avers that employees could always go to him
with complaints about anything and that he did not tell Maiworm
or any other employee that he was not to be approached with
complaints (DSF ¶¶ 95, 127-28), Dawn Drews ("Drews"), has stated
that Maiworm sent a memo to all employees indicating that no one
was to approach Dr. Lopez with any problems and that they were to
go to Maiworm. (PSF ¶¶ 266, 277). Maiworm denies that he ever
told employees that they were not to approach Dr. Lopez with
complaints. (DSF ¶ 94).
D. Present Litigation
Case filed a pro se complaint with the Equal Employment
Opportunity Commission ("EEOC") on September 30, 2003 in which
she alleged claims of sexual harassment against the practice
administrator. The EEOC issued a right to sue letter to Case on
February 27, 2004. Case filed her complaint in this court on May
26, 2004.
A. Statute of Limitations
Before determining whether a genuine issue of material fact
exists with regard to Case's hostile work environment and
constructive discharge claims, the court must determine whether
certain claims are time-barred by the statute of limitations. As
recognized by Midwestern, Title VII requires that plaintiffs file
a charge of discrimination with the EEOC no later than 300 days
after the alleged violation occurred. 42 U.S.C. § 2000e-5(e);
Conrad v. City of Chicago, 954 F. Supp. 180, 181 (N.D. Ill. 1997). Because Case did not file her EEOC charge
until September 30, 2003, Midwestern argues that all claims
relating to incidents occurring prior to December 4, 2002 are
time-barred. Case argues to the contrary that her claims are not
barred by the statute of limitations because the claims are part
of one unlawful employment practice, namely, a hostile work
In National Railroad Passenger Corporation v. Morgan,
536 U.S. 101, 153 L. Ed. 2d 106, 122 S. Ct. 2061 (2002), the Supreme
Court distinguished hostile work environment claims from those
involving discrete acts:
Hostile environment claims are different in kind from
discrete acts. Their very nature involves repeated
conduct. The `unlawful employment practice' therefore
cannot be said to occur on any particular day. It
occurs over a series of days or perhaps years and, in
direct contrast to discrete acts, a single act of
harassment may not be actionable on its own. Such
claims are based on the cumulative affect of
individual acts.
Midwestern correctly argues that Case must link those acts
occurring before December 4, 2002 with those acts that occurred
within the 300-day limitations period. See Morgan, 536 U.S. at 118 (noting that acts outside limitations period must relate to
acts that occurred within the limitations period). Unfortunately
for Case, she has not demonstrated a connection between the pre-
and post-December 4, 2002 acts.
Taking the facts in the light most favorable to Case, during
her employment with Midwestern, Maiworm, her supervisor,
subjected her to vulgar remarks and verbal conduct of a sexual
nature. Maiworm referred to women as "sluts," "whores," and
"bitches" in Case's presence. He requested sexual favors from
Case on one occasion. He made comments to Case about her sexual
relationship with her husband on one occasion. He discussed his
sexual desire for his co-workers with Case. He commented on other
employees' sexual behavior. He grabbed his genitals in front of
Case. Additionally, other employees complained to Case about
Maiworm's inappropriate behavior, including exposing his penis to
a co-worker and propositioning his co-workers to spend the night
with him. Even if such facts are true, Case has not offered
evidence that establishes that this conduct continued or that
this conduct related to the incidents that occurred after
December 4, 2002.
During her deposition, Case stated that, in the few months
prior to her resignation, Maiworm directed increasingly hostile
and vulgar language to her on a more frequent basis, specifying
that he spoke of "blow jobs" and referred to women as "sluts,"
"whore," and "bitches." Case, however, failed to offer specific,
concrete facts or details about when these comments were made,
what exactly was said, how this language was directed at her, how
it was any more vulgar than the language Maiworm had used
previously, or how much more frequently Maiworm used such
language, which is in sharp contrast to her discussion of
specific statements and conversations with Maiworm that occurred
prior to December 4, 2002. Case's conclusional statements that
Maiworm directed increasingly hostile and vulgar language to her on a more
frequent basis, ungrounded in specific facts, are insufficient to
withstand summary judgment. See Salvadori v. Franklin Sch.
Dist., 293 F.3d 989, 996 (7th Cir. 2002) (nonmovant must
present definite, concrete evidence in rebuttal to defeat a
summary judgment motion). As such, the court will disregard
Case's conclusional statements in deciding whether a genuine
issue of material fact exists.*fn3
Case also has not demonstrated that the incidents involving Dr.
Lopez were related to the incidents that occurred after December
4, 2002, i.e., the placement of the classified ads on Case's
desk or Case's being locked out of her computer. Accordingly, the
court will not consider such incidents in its analysis.
B. Hostile Work Environment Sexual Harassment and Constructive
In order to succeed on a claim of hostile work environment
based on sexual harassment, Case must establish that "(1) she was
subject to unwelcome harassment; (2) the harassment was based on
her sex; (3) the harassment was sufficiently severe or pervasive
so as to alter the terms and conditions of her employment and
create a hostile or abusive atmosphere; and (4) there is a basis
for employer liability." Racicot v. Wal-Mart Stores, Inc.,
414 F.3d 675 at 677 (7th Cir. 2005), citing Cooper-Schut v.
Visteon Auto Sys., 361 F.3d 421, 426 (7th Cir. 2004). The
work environment also must be both objective and subjectively
offensive, i.e., "one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so." Faragher v. City of Boca Raton, 524 U.S. 775 at 787,
141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998). To determine whether a hostile work environment exists, the
court considers the totality of the circumstances, including
factors such as "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." Russell v. Bd.
of Trs. of Univ. of Ill., 243 F.3d 336, 343 (7th Cir. 2001)
(internal quotations and citations omitted). The Seventh Circuit
has counseled that "isolated and minor incidents of questionable
conduct generally will not warrant a conclusion of sexual
harassment." Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463
(7th Cir. 2002). Likewise, "[t]he occasional vulgar banter,
tinged with sexual innuendo of coarse or boorish workers"
generally does not create an objectively hostile work
environment. Baskerville v. Culligan Int'l Co., 50 F.3d 428,
430 (7th Cir. 1995). The evidence offered by Case in support
of her hostile work environment claim consists of the placement
of classified ads on her desk and being locked out of her
computer. This evidence is insufficient to establish the
existence of a hostile work environment claim for several
First, Case has not offered any evidence or argument connecting
the computer lock-out incident to her gender.*fn4 Title VII
only prohibits discrimination because of an individual's race,
color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1). It does not prohibit every instance of workplace
harassment or every employment-related decision made by an
employer that an employee does not like. Moreover, the evidence
suggests that, at most, the computer lock-out was a temporary
inconvenience that occurred over the course of a single day while
Case was out of the office on medical leave.
Second, in her Local Rule 56.1(b)(3)(B) Counterstatement of
Facts, Case refers repeatedly to the placement of
sexually-explicit classified ads on her desk. See PSF ¶¶ 135,
154, 155. The cited evidence, Case's deposition testimony, only
supports the assertion that one classified ad was sexual in
nature.*fn5 Case has not offered any evidence or argument
that would suggest that the placement of a classified
advertisement that makes no reference to sex or a sex-related
profession contributes to a hostile work environment based on
sexual harassment.
Third, even if the court were to consider Maiworm's continued
use of vulgar language after December 4, 2002, including
discussions of "blow jobs" and the use of the terms "sluts,"
"whores," and "bitches," such language and comments "are more
reflective of run of the mill uncouth behavior than an atmosphere
permeated with discriminatory ridicule and insult." Racicot,
414 F.3d at 678, citing Cooper-Schut, 361 F.3d at 426. Case's
averment that Maiworm's used increasingly vulgar language also
fails to specify how this language was directed at her, how it
was any more vulgar than the language Maiworm used previously, or
how much more frequently he used such language.
Fourth, important to the court's consideration of Case's
hostile work environment claim is what did not occur. See
Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1145 (7th
Cir. 1997) (finding "it important to take into account what [the defendant]
did not do" in rejecting hostile work environment claim,
including not touching the plaintiff, not propositioning her for
sex, not threatening her, not exposing himself, not showing her
dirty pictures, nor ever saying "anything to her that could not
be repeated on prime-time television). Here, Case was not touched
or physically threatened. Maiworm never exposed himself to Case.
Maiworm never showed Case dirty pictures. Although Maiworm
requested sexual favors from Case on one occasion and commented
on her sexual relationship with her husband on one occasion, such
incidents occurred well before her resignation, and there was no
evidence that Case continued to request sexual favors or comment
on Case's relationship with her husband.
The conduct about which Case complains, while certainly
distasteful, was not illegal. As the Seventh Circuit has
explained, "[a] handful of comments spread over months is
unlikely to have so great an emotional impact as a concentrated
or incessant barrage." Baskerville, 50 F.3d at 431. See also
Patt v. Family Health Sys., Inc., 280 F.3d 749, 754 (7th
Cir. 2002) (plaintiff's complaint of eight gender-related
comments during the course of her employment, including that "the
only valuable thing to a woman is that she has breasts and a
vagina" was insufficient to demonstrate hostile work
environment). Maiworm's conduct was vulgar, boorish, and
unprofessional but not so "frequent, humiliating, or threatening
as to create a claim of hostile work environment." Whittaker v.
N. Ill. Univ., 424 F.3d at 646 (7th Cir. 2005). Taken as a
whole, the isolated incidents of inappropriate behavior and the
placement of a classified ad for an exotic dancer on Case's desk
fail to demonstrate the existence of an objectively hostile work
environment. Accordingly, the court grants Midwestern's motion
for summary judgment on Case's hostile work environment claim.
The court also concludes that Case has failed to demonstrate
that she was constructively discharged from her employment at Midwestern. In order to
establish a constructive discharge, Case must establish that the
"harassing behavior [was] sufficiently severe or pervasive to
alter the conditions of her employment" and that "the abusive
working environment became so intolerable that her resignation
qualified as a fitting response." Levenstein v. Salafsky,
414 F.3d 767 at 774(7th Cir. 2005), quoting Pennsylvania State
Police v. Suders, 542 U.S. 129 at 141, 159 L. Ed. 2d 204,
124 S. Ct. 2342 (2004). Because the court has determined already that
Case cannot satisfy the first inquiry for purposes of her hostile
work environment claim, Case cannot establish that she was
constructively discharged. The court, therefore, grants
Midwestern's motion for summary judgment on Case's constructive
discharge claim.
For the reasons stated above, the court denies Midwestern's
motion to strike [#31] but grants its motion for summary judgment
[#19]. All future dates are stricken. This case is terminated.
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text:
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