Summary
granting summary judgment where plaintiff failed to offer evidence of sexual advances
Summary of this case from Davis v. Ruby Foods Inc.Opinion
No. 98 C 5187
March 14, 2000
MEMORANDUM OPINION AND ORDER
Before the court are Defendants' motions for summary judgment. For the following reasons, the court grants Defendant's motion in case number 98 C 5187 [43-1] and remands case number 99 C 0189 to the Circuit Court of Cook County pursuant to 28 U.S.C. § 1447(c).
I. BACKGROUND
The court notes its order of October 22, 1999, where the court struck Plaintiffs affidavit, which she relied on as support for her Local Rule 12(N) statement. (See Order of October 22, 1999.) For the reasons stated in the October 22, 1999 order, the court's recitation of the facts excludes Plaintiffs "evidence" that is based on her affidavit.
These consolidated cases arise from the alleged sexual harassment of Susan Finnane ("Finnane") by Paul Ventimiglia ("Ventimiglia") and Gary Poillucci ("Poillucci") during her employment at Pentel of America, Ltd. ("Pentel"). Finnane alleges that Ventimiglia and Poillucci sexually harassed her from August 1995 to January 1998. Ventimiglia and Poillucci have management positions at Pentel. The parties agree that Poillucci was Finnane's supervisor, but dispute whether Ventimiglia had any supervisory authority over Finnane.
Finnane joined Pentel as a consumer representative in 1991, and was promoted to sales representative in 1995. In June 1995 Finnane signed a form acknowledging that she received a copy of Pentel's employee handbook and read its contents. The handbook contains an extensive policy against sexual harassment, and requires employees that are experiencing harassment to report the harassment to their supervisor or, if the supervisor is responsible for the harassment, to another member of management. In 1995 Pentel presented, and Finnane attended, a sexual harassment training session.
Ventimiglia's alleged harassment of Finnane began in September 1995, at a national sales meeting. Finnane claims that Ventimiglia summoned Finnane to his hotel room, where he asked Finnane to sit on his bed, and told her that he envisioned her in a black bra and underwear, and that he masturbated while thinking of her. Ventimiglia then allegedly groped Finnane, exposed his penis, and discussed masturbating in front of her. Finnane claims she left the hotel room after Ventimiglia engaged in this conduct.
On another occasion in November 1995, Ventimiglia allegedly asked Finnane to his hotel room, and kissed her during the elevator ride to his room. Once in the room, Finnane claims that she and Ventimiglia engaged in sexual intercourse. Although Finnane's complaint describes the intercourse "unwelcome," Finnane testified at her deposition that the intercourse was consensual.
From November 1995 through May 1996, Ventimiglia allegedly called Finnane to engage her in graphic "phone sex." Although Finnane was uncomfortable with these conversations, she sometimes participated in the "phone sex."
According to Finnane, at Pentel's national sales conference in August 1997, Ventimiglia confronted Finnane in a hallway, and said "if you come near me, I'll kill you." Finnane testified that she felt cornered by Ventimiglia, and was frightened and very disturbed by this confrontation. The record does not reveal what precipitated Ventimiglia's alleged outburst. Ventimiglia denies all of Pinnane's allegations of harassment.
Poillucci's a alleged harassment of Finnane began at the August 1997 national sales conference, when Poillucci publicly commented that "[Finnane] gives Pentel a bad name." Finnane understood this comment to be a mean joke, rather than sexual or retaliatory.
Finnane claims that Poillucci sexually harassed her again on January 13, 1998, when he was in the Chicago area on business. Finnane alleges that Poillucci asked her to his hotel room to discuss business, where he kissed her and touched her buttocks. Finnane returned the alleged kisses, but then sat down to end the contact. At this time, Poillucci allegedly said that he had envisioned doing this for some time, and that he did not know if he would rather go to dinner with Finnane, or take her to bed. Later the same evening, Finnane and Poillucci went out to dinner, where Poillucci allegedly placed his foot between her legs, and rubbed her inner thighs with his boot. Finnane then got up to leave the table, and went into the bar area of the restaurant, where she and Poillucci had drinks and talked. At some point during the dinner, Finnane told Poillucci about Ventimiglia's alleged threat at the August 1997 national sales conference. Poillucci denies any allegation that he sexually harassed Finnane.
In May 1998, Finnane requested, and was granted, a leave of absence from Pentel. Pinnane remains on leave of absence, and continues to receive full compensation and benefits. Other than Finnane's dinner conversation with Poillucci on January 13, 1998, Finnane did not report any of the alleged sexual harassment to Pentel management. Finnane admits that she is aware of Pentel's policy against sexual harassment, and that she could report any harassment to a manager or to Pentel's personnel administrator.
B. Procedural history
These cases have a somewhat complex procedural history. Case number 98 C 5187 is against Pentel only. Earlier in the litigation, Pentel moved to dismiss Finnane's first amended complaint, which the court granted in part and denied in part. See Finnane v. Pentel of America, Ltd., 43 F. Supp.2d 891 (N.D. Ill. 1999). The only portion of that order relevant to the instant matter is the court's finding that any Title VII claims that arose prior to July 22, 1997 are time barred. See id. at 895, 898. Finnane filed a second amended complaint, alleging four counts: (I) sexual harassment; (II) negligent supervision; (III) negligent retention; and (IV) loss of consortium by Finnane's husband, James.
Finnane originally filed case number 99 C 0189 in the Circuit Court of Cook County against Ventimiglia, Poillucci, and Pentel, asserting ten common law claims for relief. On December 22, 1998 Finnane voluntarily dismissed Pentel from the state court action. On January 13, 1999 Ventimiglia and Poillucci removed the case to this court, where it was consolidated with 98 C 5187.
All Defendants now move for summary judgment, which the court will discuss in turn.
II. DISCUSSION
A. Standard for Summary Judgment
Summary judgment is permissible when "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). The nonmoving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999). In other words, summary judgment is the stage of a lawsuit when the party opposing the motion must present "what evidence it has that would convince a trier of fact to accept its version of events." Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (citing Schacht v. Wisconsin Dep't of Corrections, 175 F.3d 497, 503-04 (7th Cir. 1999)). In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the party opposing summary judgment. See Fed.R.Civ.P. 56(c), see also, Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), see also First Nat'l. Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968);Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
B. Pentel's summary judgment motion
Pentel makes the following arguments in support of summary judgment: (1) Finnane presents no evidence of sexual harassment that occurred during Title VII's 300 day statute of limitations period; (2) Pentel is entitled to the affirmative defense announced in Burlington Ind., Inc. v. Ellerth, 118 S.Ct. 2257 (1998); (3) Finnane's common law claims against Pentel are pre-empted by the Illinois Worker's Compensation Act ("IWCA"); and (4) James Finnane' s loss of consortium claim fails because it is dependent on the common law claims.
Contemporaneous with its summary judgment motion, Pentel moved to stay discovery, arguing that its summary judgment motion was based entirely on the allegations of Finnane' s complaint and her deposition testimony. The court granted the motion, and stayed all discovery pending the outcome of the summary judgment motion.
Finnane counters the summary judgment motion, arguing that: (1) Pentel did not move for summary judgment on Pentel's quid pro quo claim; (2) time barred sexual harassment is evidence of a hostile work environment; (3) the non-time barred conduct constitutes a hostile work environment; (4) Pentel is not entitled to the Ellerth defense because Finnane reported the alleged harassment to Poillucci, and because the court stayed discovery on the actions Pentel took in response to the alleged harassment; (5) the IWCA does not pre-empt her common law claims against Pentel; and (6) the loss of consortium claims survive.
1. Sexual harassment
There are two general categories of sexual harassment, "quid pro quo" harassment and "hostile work environment" harassment. In Ellerth, the Supreme Court discussed the differences between the terms quid pro quo and hostile work environment. The Court described the terms as a "rough demarcation between cases in which threats are carried out [quid pro quo] and those where they are not or are absent altogether [hostile work environment], but beyond this are of limited utility." Id. at 2264. The Seventh Circuit has iterated that quid pro quo harassment occurs when the availability to the plaintiff of tangible employment benefits is conditioned upon her compliance with a harasser's sexual demands. See Venters v. City of Delphi, 123 F.3d 956, 975 (7th Cir. 1997); see also Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir. 1996). In a claim for hostile work environment, sexually demeaning behavior that is so severe or pervasive as to alter the terms and conditions of employment is a violation of Title VII. Ellerth, 118 S. CT. at 2264.
a. Quid pro quo
The court first addresses Finnane's quid pro quo argument, which she claims must go forward because Pentel did not move for summary judgment on the issue. The court finds this argument to be without merit. Although the focus of Pentel's briefs is on the severe or pervasive elements of a hostile work environment claim, Pentel has not limited its motion to that argument only. Rather, Pentel moved for summary judgment on Finnane's sexual harassment claim, which includes both hostile work environment andquid pro quo harassment. See Ellerth 118 8. Ct. at 2264-65 (describing the terms "hostile work environment" and "quid pro quo harassment" as short hand descriptions of harassment prohibited by Title VII). In addition, Finnane's second amended complaint has only one Title VII count, which is for sexual harassment. Therefore, the court rejects Finnane's argument that Pentel has not moved for summary judgment on the alleged quid pro quo claim.
Pentel argues that Finnane presents no evidence to support the existence of the alleged quid pro quo claim. The court agrees. To support her claim, Finnane must present evidence demonstrating: (1) that she is a member of a protected group; (2) the sexual advances were unwelcome; (3) the harassment was sexually motivated; (4) her reaction to the sexual advances affected a tangible aspect other employment; and (5) respondeat superior. See Bryson, 96 F.3d at 915. This case is at the summary judgment stage, where Finnane must present what evidence she has that could convince a trier of fact of her version of events. See Shank, 192 F.3d at 682 (citations omitted).
Importantly, Finnane cannot rest on her pleadings to oppose summary judgment, see Cornfield, 991 F.2d at 1320, rather, she must present more than a mere scintilla of evidence that raises a triable question of fact. See Murphy, 176 F.3d at 936. Instead of presenting evidence, Finnane points to three paragraphs of her second amended complaint as support for her quid pro quo claim. (See Pl's Mem. in Opp'n to Def.'s M. for Summ. J., pp. 9-10.) Finnane fails to cite to any evidence to support those allegations, and similarly fails to cite any legal authority to support her position. In short, Finnane demonstrates no reason why thequid pro quo claim should proceed further. See Doe, By and Through G.S. v. Johnson, 52 F.3d 1448, 1457 (7th Cir. 1995) ("A litigant who fails to press a point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority, forfeits the point"); see also Doherty v. City of Chicago, 75 F.3d 318, 324 (7th Cir. 1996) ("Given our adversary system of litigation, `[i]t is not the role of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel'") (quotingSanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986), cert. denied, 107 S.Ct. 933 (1987)). Accordingly, the court grants summary judgment in favor of Pentel on any claims for quid pro quo harassment.
b. Hostile work environment
Turning to the hostile work environment issue, Finnane relies on allegations of harassment that occurred prior to July 22, 1997 to argue that Finnane was subject to a hostile work environment. As support for the court's consideration of the time barred acts, Finnane relies on dicta from the court's March 22, 1999 order, where the court struck the time barred allegations from the complaint, but stated that "[w]hether any [time barred] incidents are admissible at trial is an evidentiary matter to be determined later." Finnane, 43 F. Supp.2d at 898 (citing Conway v. Cook County, No. 98 C 5324, 1999 WL. 14497 at 6-7 (N.D. Ill. Jan. 8, 1999)). Finnane's reliance on this statement is without merit. First, this case is at the summary judgment stage, where the court's function is to determine whether Finnane presents evidence of anactionable Title VII claim. Cf. Shank, 192 F.3d at 682 (emphasis added). The existence of time barred harassment does not alter the court's analysis because Finnane's Title VII claim must stand or fall on incidents that occurred within the limitations period. See Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 345 (7th Cir. 1999). Second, the court's citation to Conway demonstrates that time barred acts are admissible at trial for limited purposes, such as to prove that non-time barred harassment occurred, or as character evidence under Federal Rule of Evidence 404. See e.g., Mathewson v. National Automatic Tool Co., Inc., 807 F.2d 87, 90 (7th Cir. 1986) (time barred evidence may be used to prove a timely claim based on subsequent discriminatory conduct by an employer); Conway, 1999 WL 14497 at 6-7 (time barred conduct may be admissible under Fed.R.Evid. 404); Conrad v. City of Chicago, 954 F. Supp. 180 (N.D. Ill. 1997) (time barred conduct may be admissible to prove discriminatory motives). Under no circumstances, however, can the allegations of time barred harassment form the basis of recovery. See Hardin, 167 F.3d at 345 (conduct occurring outside of Title VII's 300 day limitation period cannot form the basis of a claim); see also Galloway v. General Motors Service Parts Oper., 78 F.3d 1164, 1167 (7th Cir. 1996); Yoho v. Tecumseh Products Co., 43 F. Supp.2d 1021, 1026-27 (E.D. Wis. 1999); Lewis v. Simmons Airlines, Inc., 16 F. Supp.2d 978, 982-83 (C.D. Ill. 1998); cf. Heuer v. Weil-McClain, ___F .3d___, 2000 WL 193055 at 1 (7th Cir. Feb. 18, 2000) (declining to consider time barred conduct as the basis for a sexual harassment claim). Therefore, the court will not consider any allegations of harassment that occurred prior to July 22, 1997 as a basis for recovery.
The court finds that Finnane' s non-time barred allegations raise a question of fact as to whether Finnane was subject to a hostile work environment. In order to be actionable, a hostile work environment must be sufficiently severe or pervasive, so as to alter the conditions of employment. See Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1143-44 (7th Cir. 1997) (citing cases). "`Whether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances.'" Gleason, 118 F.3d at 1143-44 (quoting Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 370-71 (1993)). "These may include 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.'"Gleason, 118 F.3d at 1143-44 (quoting Harris, 114 S.Ct. at 371). Under this standard, a single incident of severely offensive conduct is a violation of Title VII, as are repeated instances of less offensive conduct. See Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999) (holding that a single severe incident of sex-based harassment was sufficient to state a Title VII claim); see also Ellerth, 118 S.Ct. at 2262-63 (outlining repeated instances of offensive conduct that was actionable as a hostile work environment).
Finnane's non-time barred allegations of harassment are: (1) the August 1997 incident where Ventimiglia allegedly cornered Finnane in a hotel hallway and told her "if you come near me, I'll kill you:" (2) Poillucci's comment at the August 1997 conference, where he publicly commented that "[Finnane] gives Pentel a bad name;" (3) the first incident on January 13, 1998, where Poillucci asked Finnane to his hotel room, kissed her, touched her buttocks, told her that he envisioned doing this for sometime, and that he did not know if he wanted to take her to dinner or take her to bed; and (4) the second incident on January 13, 1998 when Poillucci and Finnane went to dinner, and Poillucci placed his foot between her legs and rubbed her inner thighs with his boot.
Initially, the court finds that Poillucci's comment that "[Finnane] gives Pentel a bad name" is not actionable under Title VII. The conduct giving rise to the hostile work environment claim must be both objectively and subjectively offensive, so that the work environment is hostile or abusive. See Faragher 118 S.Ct. 2275, 2283 (1998). Poillucci's comment is neither sexual in nature, nor is it objectively offensive enough for a reasonable person to find that it renders the work environment hostile or abusive. The comment is not complimentary, but as the Seventh Circuit has often iterated, mere off color remarks are insufficient to support a Title VII claim. See Doe v. R.R. Donnelley Sons Co., 42 F.3d 439, 445-46 (7th Cir. 1994) (citing cases). Further, Finnane testified that she thought the comment was a mean joke, but that it was not sexual or retaliatory. Accordingly, the court finds that Poillucci's comment in August 1997 is neither objectively nor subjectively offensive, and does not support a Title VII claim.
The remaining incidents raise a fact question as to whether Finnane was subject to a hostile work environment. As outlined above, the court examines numerous factors in determining whether a plaintiff was the victim of severe or pervasive harassment. See Gleason, 118 F.3d at 1143-44 (quoting Harris, 114 S.Ct. at 371). Cases of unwelcome intimate physical contact or threatening words or acts often constitute a hostile work environment. See Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995) (citing cases and noting that non-consensual contact and explicit or implicit threats constitute a hostile working environment, and are distinguishable from merely offensive conduct). In this case, a jury could reasonably find that Ventimiglia's and Poillucci' s conduct was sufficiently severe or pervasive to constitute a hostile working environment. For example, Ventimiglia's statement that he would kill Finnane is overtly threatening, and Finnane testified that she felt Ventimiglia had her cornered in a hotel hallway when he made the threat. One of Poillucci's advances took place when Finnane was alone with Poillucci in a hotel room, where Poillucci kissed Finnane, touched her buttocks, and said that he did not know if he wanted to take Finnane to dinner or to bed. A reasonable jury could infer humiliation and a physical threat in such a situation. See Gleason, 118 F.3d at 1143-44 (noting that threatening or humiliating conduct is a factor in finding a hostile work environment) (quoting Harris, 114 S.Ct. at 371); but see Jones v. Clinton, 990 F. Supp. 657, 675-76 (E.D. Ark. 1998) (describing a request for oral sex, and other conduct, that occurred while the purported harasser and victim were alone in a hotel room as "boorish and offensive," but holding that such conduct did not constitute a hostile work environment). Poillucci also engaged in intimate physical contact in public with Finnane when he placed his foot between her legs and rubbed her inner thighs at a restaurant. The court finds that such incidents raise a question of fact as to whether Finnane was subject to a hostile work environment.
Pentel cites numerous cases of what it claims are worse incidents of harassment that were found not to be actionable under Title VII. The court has reviewed the cases, and finds them distinguishable. Poillucci's intimate physical contact with Finnane, his explicit expression of sexual desire while alone with Finnane in a hotel room, and Ventimiglia's overt physical threat distinguish the case at bar from the "unpleasant atmosphere" cases cited by Pentel. See Baskerville, 50 F.3d at 430-31 (citing cases and noting the sometimes murky line between actionable harassment and merely offensive behavior); see also R.R. Donnelley Sons Co., 42 F.3d at 444 n. 2, 3 (citing cases of nonactionable incidents of unpleasant behavior and cases of actionable discrimination). In short, Finnane presents evidence of conduct that is sufficiently brazen and cumulative for a reasonable jury to conclude that Finnane was subject to a hostile working environment. See e.g., Silk v. City of Chicago, 194 F.3d 788, 807 (7th Cir. 1999) (ADA case, noting that in discrimination cases, the "whole can be greater than the sum of the parts"); see also Smith, 189 F.3d at 533-34; Baskerville 50 F.3d at 430.
Pentel also argues that the incidents involving Poillucci are not actionable because Finnane consented to Poillucci's advances. This argument is without merit. Unwelcome sexual advances are a violation of Title VII, regardless of whether the victim consents to the demand. See Mentor Sav. Bank, FSB v. Vinson, 106 S.Ct. 2399, 2406 (1986). The correct inquiry is" whether the [victim) by her conduct indicated the alleged sexual advances were unwelcome, not whether her actual participation in sexual [acts] was voluntary" Id. In this case, Finnane testified that after Poillucci kissed her in his hotel room, she sat down to break off the contact. Similarly, after Poillucci rubbed Finnane's legs with his foot in the restaurant, Finnane stood up to go to the bar area of the restaurant, thereby breaking off Poillucci's contact. On this evidence, the court finds that Finnane raises a question as to whether Finnane welcomed Poillucci' s contact.
2. Pentel is entitled to the Ellerth defense
Nevertheless, the court finds that Pentel is entitled to summary judgment because Pentel is entitled to the affirmative defense the Supreme Court announced in Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998). In Ellerth, the Supreme Court held that an employer can avoid vicarious liability for Title VII sexual harassment committed by a supervisor with immediate or successively higher authority over the employee if the employer: (1) exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities that the employer provides. See id. at 2270. This defense is not available if the supervisor s harassment "culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." See id. In this case, the parties agree that Poillucci was Finnane's supervisor, but dispute whether Ventimiglia was a supervisor with immediate or successive authority over Finnane. The court must construe evidence in the light most favorable to Finnane. See JTC Petroleum Co. v Piasa Motor Fuels, Inc., 190 F.3d 775, 777 (7th Cir. 1999). Therefore, for the purposes of summary judgment, the court assumes that Ventimiglia was Finnane's supervisor.
As a threshold matter, the court must determine whether Finnane suffered a tangible employment action, for if she did, Pentel is not entitled to the affirmative defense. See Ellerth, 118 S.Ct. at 2270. A tangible employment action is a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. at 2268. "A tangible employment action in most cases inflicts direct economic harm." Id. at 2269. The rationale for imposing vicarious liability on an employer for harassment that results in a tangible employment action is based on agency principles. See id. at 2268-69. "Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates." Id. at 2269. "A tangible employment decision requires an official act of the enterprise, a company act . . . [and] in most cases is documented in official company records, and may be subject to review by higher level supervisors." Id. "For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer." Id.
Here, the parties dispute whether Finnane suffered a tangible employment action. There is no dispute that Finnane asked to be placed on leave of absence, and Pentel honored her request. Finnane continues to receive full compensation, commissions, and benefits while on leave of absence. Pentel argues that the leave of absence is not a tangible employment action because Finnane asked to be placed on leave of absence, and relies on Marsicano v. American Society of Safety Engineers, No. 97 C 7819, 1998 WL 603128 (N.D. Ill. September 4, 1998) as support. Finnane, on the other hand, argues that her leave of absence is a tangible employment action. Finnane also asserts that she suffered a tangible employment action because she was subject to unspecified joke telling and gossip. Finnane, however, fails to cite any authority to support her position.
Initially, the court rejects Finnane's argument that joke telling and gossip is a tangible employment action. Such gossip and joke telling is not the economic type of harm the Supreme Court described as a tangible employment action. See Ellerth, 118 S.Ct. at 2268-69; cf. Robinson v. Truman College, No. 97 C 896, 1999 WL 33887 at 6 (N.D. Ill. 1999) (holding that a supervisor no longer advising and reassuring a plaintiff over her job is not a tangible employment action).
The court also finds that a voluntary leave of absence is not a tangible employment action within the scope of Ellerth. As outlined above, the Supreme Court used an agency analysis to find that an employer is not entitled to an affirmative defense if the employee suffers a tangible employment action. See Ellerth, 118 S.Ct. at 2268-69. Thus, the focus is on the employer's action, not the employee's response to the harassment. See Marsicano, 1998 WL 603128 at 6. "[T]he concept of a tangible employment action for vicarious liability purposes does not embrace a response action on the part of the employee that brings about a change in employment status." Id. Rather, the focus of the Ellerth defense is on the "terms of actions taken, or decisions made, by a supervisor." Id. Other courts have found that voluntary actions taken by an employee are not tangible employment actions that give rise to vicarious liability under Ellerth. See Sims v. Health Midwest Physician Services Corp., 196 F.3d 915, 921 (8th Cir. 1999) (holding that a voluntary transfer to another division is not a tangible employment action within the scope of Ellerth); Shaw v. Autozone, Inc., 180 F.3d 806, 811 (7th Cir. 1999) (noting that resigning is not a tangible employment action under Ellerth); Denegan v. City of Council Grove, Kansas Water Dept., 77 F. Supp.2d 1192, 1199-1200 (D. Kan. 1999) (rejecting the argument that a voluntary leave of absence and use of sick leave constitute a tangible employment action); Marsicano, 1998 WL 603128 at 6 (holding that an employee that failed to show up for work, after being on the job for eight days, did not suffer an tangible employment action);see also Schoiber v. Emro Marketing Co., No. 95 C 5726, 1999 WL 825275 (N.D, Ill. Sept. 21, 1999) (citing cases and raising the issue of whether constructive discharge is a tangible employment action). The court stresses that Finnane's only argument on this point is that her voluntary leave of absence is a tangible employment action. The court rejects this argument, and finds that Finnane has not suffered a tangible employment action.
Next, the court must determine whether Pentel has "exercised reasonable care to prevent and correct promptly any sexually harassing behavior."Ellerth 118 S.Ct. at 2270. "While not required as a matter of law . . . the existence of an appropriate anti-harassment policy will often satisfy [the] first [Ellerth] prong . . . because `Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.'" Shaw, 180 F.3d at 811 (citations omitted). In this case, the parties agree that Pentel has an antiharassment policy, which was in place at all relevant times. The policy states:
The Company is committed to providing a work place free of sexual harassment (which includes harassment based on gender, pregnancy, childbirth, or related medical conditions) as well as harassment based on such factors as race, color, religion, national origin, ancestry, age, physical disability, mental disability, medical condition, marital status, sexual orientations, family care leave status, or veteran status. Pentel strongly disapproves of and will not tolerate harassment of employees by managers, supervisors, or coworkers. Pentel also will attempt to protect employees from harassment by non-employees in the work place.
Harassment includes verbal, physical, and visual conduct that creates an intimidating, offensive, or hostile working environment or that interferes with work performance. Such conduct constitutes harassment when (I) submission to the conduct is made either an explicit or implicit condition of employment; (2) submission to or rejection of the conduct is used as the basis for an employment decision; or (3) the harassment interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment.
Harassing conduct can take many forms and includes, but is not limited to, slurs, jokes, statements, gestures, pictures, or cartoons regarding an employee's sex, race, color, national origin, religion, age, physical disability, mental disability, medical condition, ancestry, marital status, sexual orientation, family care leave status, or veteran status.
Sexually harassing conduct in particular includes all of these prohibited actions as well as other unwelcome conduct such as requests for sexual favors, conversation containing sexual comments, and unwelcome sexual advances.
You should report any incident of harassment, including work-related harassment by any Company personnel or any other person, promptly to your supervisor or manager or to any other member of management, who is responsible for investigating the matter. Managers who receive complaints or who observe harassing behavior should inform the Personnel Administrator immediately. Pentel emphasizes that you are not required to complain first to your supervisor if your supervisor is the individual who is harassing you.
Every reported complaint of harassment will be investigated thoroughly, promptly, and in a confidential manner. In addition, Pentel will not tolerate retaliation against any employee for cooperating in an investigation or for making a complaint to any manager.
In the case of Pentel employees, if harassment is established, Pentel will discipline the offender. Disciplinary action for a violation of this policy can range from verbal or written warnings up to and including immediate termination, depending upon the circumstances. With regard to acts of harassment by customers or vendors, corrective action will be taken after consultation with the appropriate management personnel.
Sexual harassment and retaliation for opposing sexual harassment or participating in investigations of sexual harassment, are illegal. In addition to notifying Pentel about harassment or retaliation complaints, affected employees may also direct their complaints to the California Department of Fair Employment and Housing ("DFEH"), which has the authority to conduct investigations of the facts. The deadline for filing complaints with the DFEH is one year from the date of the alleged unlawful conduct. If the DFEH believes that a complaint is valid and settlement efforts fail, they may seek an administrative hearing before the California Fair Employment and Housing commission ("FEHC") or file a lawsuit in court. Both the FEHC and the courts have the authority to award monetary and nonmonetary relief in meritorious cases. You can contact the nearest DFEH office or the FEHC at the locations listed in Pentel's DFEH poster or by checking the state government listings in the local telephone directory.
The California Labor Commissioner, rather than the DFEH, processes administrative claims of sexual orientation discrimination. The deadline for filing complaints with the Labor Commissioner is 30 days from the date of the alleged unlawful conduct.
(Def.'s Ex. H Support of Local Rule 12(M) Statement [47-1].)
This anti-harassment policy is detailed, and provides multiple mechanisms for discovering and correcting harassment. See Shaw, 180 F.3d at 811-12 (finding a that a detailed anti-harassment policy satisfied the first prong of Ellerth); see also Schoiber, 1999 WL 825275 at 12 (holding that an antiharassment policy that did not tolerate harassment and provided multiple mechanisms for promptly resolving disputes was sufficient for the first Ellerth prong). Further, Pentel presented, and Finnane attended, a seminar on sexual harassment, where Pentel's personnel administrator outlined the policy and explained the reporting mechanisms. Finnane admits she knew of the antiharassment policy and its reporting procedures. Accordingly, the court finds that Pentel' s antiharassment policy satisfies its obligation to take reasonable care to prevent and correct promptly any sexually harassing behavior. Compare Faragher, 118 S.Ct. at 2293 (holding that an antiharassment policy that is not disseminated to employees is insufficient to meet the first element of the affirmative defense).
Turning to the second prong of the Ellerth defense, the court must determine whether Finnane unreasonably failed to take advantage of Pentel's antiharassment policy. An employer is entitled to the affirmative defense if the plaintiff "unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Ellerth 118 S.Ct. at 2270. "[W]hile proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." Id. Here Pentel argues that Finnane failed to take advantage of its antiharassment policy because she never informed a member of management or the personnel administrator of the alleged harassment. Finnane, on the other hand, argues that Poillucci had knowledge of his own harassment of Finnane, which is chargeable to Pentel. Finnane also claims that Poillucci had knowledge of Ventimiglia' s threatening behavior at the August 1997 conference because Finnane told Poillucci about that incident at dinner on January 13, 1998 (the same date that Poillucci allegedly harassed Finnane).
The court finds that Finnane unreasonably failed to take advantage of Pentel' s antiharassment policy. First, in her deposition, Finnane admitted that: (1) she knew of Pentel "s antiharassment policy; (2) she could have contacted Pentel's personnel administrator to report the harassment; and (3) she failed to report the harassment to any supervisor or to the personnel administrator. Thus, there is no dispute that Finnane knew about Pentel's official policy, and failed to take advantage of it.
The court also finds Finnane's argument to be without merit. The law requires Finnane to take reasonable advantage of opportunities to report sexual harassment. See Ellerth 118 S.Ct. at 2270. Also, Finnane must report alleged harassment to someone that could reasonably be expected to report the matter in accordance with Pentel's antiharassment policy. See Parkins v. Civil Constructors of Illinois, 163 F.3d 1027, 1037 (7th Cir. 1998) (noting that his unreasonable to expect someone accused of sexual harassment to report his own harassment) (citing Young v. Bayer Corp., 123 F.3d 672, 675 (7th Cir. 1997)); see also Hetreed v. Allstate Ins. Co., No 96 C 2021, 1999 WL 311728 at 6 (N.D. Ill. May 12, 1999) (holding that to impute the harassing supervisor's knowledge to the employer is to render the Ellerth defense moot). As discussed above, Pentel provided Finnane with several avenues to report Ventimiglia's and Poillucci's harassment. Instead of taking advantage of those avenues, Finnane claims that Poillucci should have reported both his and Ventimiglia's harassment of Finnane. First, Parkins makes clear that Finnane cannot reasonably rely on Poillucci to report his own harassment. See Parkins, 163 F.3d at 1037; see also Hetreed, 1999 WL 311728 at 6. Second, the court finds that Finnane cannot reasonably rely on Poillucci to report her allegations of Ventimiglia's harassment. Finnane presents no evidence that her dinner conversation with Poillucci was an official report of Ventimiglia's sexual harassment. Finnane had this conversation with Poillucci shortly after he allegedly harassed her in his hotel room by kissing her, touching her buttocks, and by saying that he did not know if he wanted to take her to dinner or to bed. Finnane also claims that Poillucci continued harass her during the dinner by rubbing her inner thighs with his foot. It is unreasonable for an employee to expect a supervisor that is sexually harassing her to report other allegations of harassment against the employee, which the supervisor learned during the course of his own harassment. See Parkins, 163 F.3d at 1037; Hetreed, 1999 WL 311728 at 6. This is especially true in this case, where Finnane was well aware that she could report the alleged harassment to another manager, or to the personnel administrator. On this record, the court finds that Finnane failed to take advantage of Pentel' s antiharassment policy, which entitles Pentel to the Ellerth affirmative defense to vicarious liability.
Finally, the court rejects Finnane's argument that the stay of discovery precludes the Ellerth defense. As noted above, Finnane admits that she knew about the antiharassment policy and failed to take advantage of it. Pentel's actions would only become relevant if Finnane had taken advantage of the policy and reported the harassment. See Perry v. Harris Chernin, 126 F.3d 1010, 1014 (7th Cir. 1997) (noting that an employer "will not be liable for [sexual harassment] if it had no reason to know about it"). Therefore, the stay of discovery did not "stymie" Finnane's case.
3. The court does not have jurisdiction to hear common law claims against Pentel
Next, the court finds that it does not have subject matter jurisdiction to hear Finnane "s negligence claims, because the Illinois Worker's Compensation Act ("IWCA") is the exclusive remedy for common law claims by an employee against an employer. See Simmons v. Chicago Public Library, 860 F. Supp. 490, 493-94 (N.D. Ill. 1994). To escape the exclusive remedy provision of the IWCA, a plaintiff must plead and prove that the injury: (1) was not accidental; (2) did not arise from the plaintiffs employment; (3) did not occur during the course of employment; or (4) is not compensable under the IWCA. See Meerbrey v. Marshall Field and Co., Inc., 564 N.E.2d 1222, 1225 (Ill. 1990). Numerous decisions of this court have found that federal courts do not have jurisdiction to hear negligence claims against an employer. See Simmons, 860 F. Supp. at 493-94 (holding that the IWCA barred a negligent retention claim);Ehrhart v. Lexis-Nexis, No. 98 C 8441, 1999 WL 1267705 at 2 (N.D. Ill. Oct. 12, 1999) (holding that the IWCA "abrogated employer liability for common law negligence," and dismissing a negligent infliction of emotional distress claim for lack of subject matter jurisdiction) (quoting Small v. Chicago Health Clubs, Inc., 843 F. Supp. 398, 403 (N.D. Ill. 1994)). This holds true where the negligence claim against the employer is based on intentional torts and sexual harassment committed by one employee against another. See Simmons, 860 F. Supp. 490, 493-94 (N.D. Ill. 1994) (noting that an employer is not liable for the intentional torts of an employee unless the employer directed, encouraged or committed the intentional torts) (citing cases); Cibrario v American Drug Stores, Inc., No 97 C 8279, 1998 WL 677167 at 4 (N.D. Ill. Sept. 22, 1998) (finding the IWCA barred subject matter jurisdiction of negligent hiring and retention claims based on a sexual assault committed by a co-worker); Rushing v. United Airlines, 919 F. Supp. 1101, 1111-12 (N.D. Ill. 1996) (holding that the IWCA barred jurisdiction of negligent supervision and retention claims based on sexual harassment).
In an attempt to preserve the negligence claims, Finnane focuses on the course of employment exception, and argues that she did not receive the injuries during the course of her employment because she was the victim of intentional torts committed by Ventimiglia and Poillucci. Put another way, Finnane argues that Ventimiglia's and Poillucci's conduct was outside the scope of their employment, and therefore, Finnane's injuries did not occur within the course of her employment. The court rejects this argument. As noted above, an employer is not liable for the intentional torts of employees committed against co-employees unless the employer "expressly authorized the coemployee to commit the tort." See Hunt-Golliday v. Metropolitan Water, 104 F.3d 1004, 1016-17 (7th Cir. 1997) (noting that intentional injuries committed by co-workers are accidental from an employer's point of view, the employer has a right to believe that the IWCA is the injured employee's exclusive remedy); see also Simmons, 860 F. Supp. 490, 493-94 (N.D. Ill. 1994). Finnane presents no evidence that Pentel authorized, or otherwise directed, encouraged, or committed the alleged torts upon Finnane. See Hunt-Golliday, 104 F.3d at 1016-17; Simmons, 869 F. Supp. at 493-94 (N.D. Ill. 1994). Therefore, the court rejects Finnane's argument. As the above authorities make clear, this court does not have subject matter jurisdiction to hear negligence claims against Illinois employers. See Small, 843 F. Supp. at 403; see also Hunt-Golliday, 104 F.3d at 1016-17; Simmons, 860 F. Supp. at 493-94 (N.D. Ill. 1994); Ehrhart, 1999 WL 1267705 at 2; Cibrario, 1998 WL 677167 at 4; Rushing, 919 F. Supp. at 1111-12. Accordingly, the court dismisses the negligent retention and negligent supervision claims against Pentel pursuant to Fed.R.Civ.P. 12(b)(1).
James Finnane's loss of consortium claim against Pentel is based upon, and derivative of, Finnane' s negligence claims against Pentel. See Finnane, 43 F. Supp.2d at 904; (see also Pl.'s Resp. to Def.'s Mot. to Dismiss [18-11 pp. 14-15.) Because the court does not have subject matter jurisdiction to hear the negligence claims, the court likewise does not have jurisdiction to hear the loss of consortium claim. See Finnane, 43 F. Supp.2d at 904 (citing McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1167 (7th Cir. 1997) (quoting Watters v Dinn, 666 N.E.2d 433, 438 (Ind.App.Ct. 1996)). Therefore, the court also dismisses James Finnane's loss of consortium claim against Pentel pursuant to Fed.R.Civ.P. 12(b)(1).
C. Ventimiglia's and Poillucci's motion
The court does not reach the merits of Ventimiglia's and Poillucci' s motion. Because "federal courts are courts of limited jurisdiction,"Matter of County Collector, 96 F.3d 890, 895 (7th Cir. 1996), the court has a "non-delegable duty to police the limits of federal jurisdiction with meticulous care." Market Street Assocs. Ltd. v. Frey, 941 F.2d 588, 590 (7th Cir. 1991). The court has reviewed the jurisdictional questionsua sponte pursuant to its general duty to jealously guard the federal courts' limited jurisdiction. See Wisconsin Knife Works v. National Metal Crafters, 781 F.2d 1280, 1282 (7th Cir. 1986) ("The first thing a federal judge should do when a complaint is filed is check to see that federal jurisdiction is properly alleged"); see also Douglas v. E.G. Baldwin Assocs., Inc., 150 F.3d 604, 606 (6th Cir. 1998) ("Nothing is to be more jealously guarded by a court than its jurisdiction"). The court must be completely satisfied that it has subject matter jurisdiction before hearing a case on the merits. Section 1447(c) requires district courts to "remain vigilant to ensure the presence of jurisdiction. . . ." See In re Shell Oil Co., 966 F.2d 1130, 1133 (7th Cir. 1992). The court is therefore required to remand a case if it appears, at any time before final judgment, that the court lacks jurisdiction. See 28 U.S.C. § 1447(c).
In this case, Ventimiglia and Poillucci removed the case from the Circuit Court of Cook County, asserting that the court has jurisdiction pursuant to 28 U.S.C. § 1332, that is, diversity of citizenship. An allegation of citizenship, rather than residence, is necessary to support jurisdiction under 28 U.S.C. § 1332. See McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 653 (7th Cir. 1998) (emphasis added); see also 28 U.S.C. § 1332(a). Ventimiglia's and Poillucci's notice of removal states that Ventimiglia is a citizen of Michigan and Poillucci is a citizen of Massachusetts, but makes no reference to Finnane' s citizenship. Similarly, Finnane' s complaint makes an allegation of Illinois residency, without any information about Finnane's citizenship. Thus, neither party has properly alleged diversity jurisdiction. Accordingly, the court remands case 99 C 0189 to the Circuit Court of Cook County, pursuant to 28 U.S.C. § 1447(c).
III. CONCLUSION
For the foregoing reasons, the court grants summary judgment in favor of Pentel in case number 98 C 5187, and remands case number 99 C 0189 to the Circuit Court of Cook County.
IT IS SO ORDERED.