Opinion
No. 99 C 2832
February 9, 2000
MEMORANDUM OPINION AND ORDER
Kenneth Hull sues APCOA/Standard Parking Corporation ("Standard") for sexual harassment, sexual discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et. seq. Hull claims he was subjected to quid pro quo sexual harassment and was discharged due to his gender and in retaliation for complaining about the harassment. Standard moves for summary judgment pursuant to Fed.R.Civ.P. 56 and Local Rule 56.1.
BACKGROUND
VI. The parties
All facts are undisputed unless otherwise noted. Hull worked for Standard from May 16, 1991 until he was terminated on October 25, 1995. Def. 56.1(A)(3) Statement of Undisputed Facts ¶¶ 11, 82, 102 ("Def. facts"). Standard manages parking garage facilities throughout the United States; including approximately 450 garages in the Chicago area. Id. ¶ 1. Cashiers and other hourly employees are supervised by shift managers. Id. ¶ 2. The shift manager reports to a garage manager in charge of a particular facility. Id. The garage manager reports to a division/senior manager, who, in turn, reports to a Chicago region vice president of operations. Id. At the time Hull worked at Standard, garage managers had the authority to recommend discipline or termination of managers, but terminations had to be approved by a division/senior manager. Id. ¶ 3. Similarly, shift managers had the authority to recommend discipline or termination of union employees, but all discipline had to be approved by the garage manager. Id. ¶ 4. At all relevant times, Phil Schragal was one of the vice presidents of operations for the Chicago region. Id. ¶ 11. Robert Procarione was division manager of the Chicago park district garages, Clarissa Collins was garage manager of the East Monroe Garage ("East Monroe"), and Hull was a shift manager at East Monroe. Id. ¶¶ 21, 30.
II Hull's employment history
Standard hired Hull as a porter May 16, 1991. Id. ¶ 11. In 1993, Hull was promoted to a supervisory position and later to a shift manager position at Standard's 900 North Michigan Self-Park and Valet Garages. Id. ¶ 14. In May 1994, Hull requested transfer due to a conflict with Michael Miller, the garage manager of the 900 North Michigan facility. Id. ¶ 16. In August 1994, Standard transferred Hull and he split his time between East Monroe and the Grant Park North Garage ("Grant Park"). Id. ¶¶ 22, 24. During this period at East Monroe, Hull met Collins, who at that time was also a shift manager at the facility. Id. 6 ¶ 25. Collins and Hull did not have any problems during his first stint at East Monroe. Id.; Plaintiff's 56.1(b)(3)(B) Amended Statement of Additional Facts ¶ 32 ("Pl. facts"). In December 1994, Hull was transferred back to the 900 North Michigan facility. Def. facts ¶ 28.
At some time in 1994, Collins was promoted to garage manager of the East Monroe facility. Id. ¶¶ 30, 31. In February 1995, a shift manager position opened up at East Monroe. Id. ¶ 29. Collins was interested in having Hull fill the position and tried to convince him to transfer. Id. ¶ 30. She repeatedly called him at home and praised his abilities as a shift manager. Id. ¶¶ 30-31; Pl. facts ¶¶ 39-41. She told Hull she was not satisfied with the current shift managers at East Monroe. Id. Collins also requested Schragal and Procarione to transfer Hull to East Monroe. Id. In March 1995, Schragal called Hull and asked him to transfer back to East Monroe. Def. facts ¶ 33. Hull accepted the transfer because Collins had spoken so highly of his management abilities and because Schragal had personally called him. Id. Hull began working at East Monroe in March 1995. Id. ¶ 34.
III Standard's discipline and sexual harassment Policies
In 1994 and 1995, Standard had a progressive discipline policy that applied to all employees, including managers. Id. ¶ 5. Under the policy, if an employee is not meeting company standards, and immediate dismissal is not indicated, the employee's manager is to take certain action. Pl. facts ¶ 157. The manager is supposed to: discuss the matter with the employee, prepare a written employee disciplinary report, warn the employee that further misconduct will result in more severe action that may include termination, and the completed disciplinary report should be signed by the manager, the employee, the division manager and a witness. Id. The disciplinary report would then become part of the employee's personnel file. Id. The policy sets out the procedures for terminating an employee; these also include meeting with the employee and preparing a disciplinary report that should be signed by the manager, a witness and the employee. Id. In cases involving serious misconduct, the normal application of progressive discipline may be disregarded. Id. The policy provides:
Under normal circumstances, the Company endorses a policy of progressive discipline in which it attempts to provide employees with notice of deficiencies and an opportunity to improve. Standard Parking does, however, retain the right to administer discipline in any manner it sees fit.
Def. facts ¶ 5. (emphasis added). Standard asserts this policy was generally followed but contends garage managers determined whether progressive disciplinary notices would be issued in a given situation. Id.
According to Procarione, Standard maintained documentation concerning the performance of managers aside from disciplinary reports, sometimes known as "paper trails." Id. ¶ 6. These documents were not part of the progressive discipline policy and were not necessarily disciplinary in nature. Id. This documentation consisted mainly of notes pertaining to incidents that were kept by a garage or division manager. Id. Unlike formal disciplinary reports, paper trail documents were not necessarily shared with the manager about whom they were written. Id. ¶ 7. Hull disputes that this was a regular or recognized practice and that paper trails were a permissible alternative to progressive discipline prior to termination. Plaintiff's 56.1 response ¶¶ 7 ("Pl. resp.").
Standard's Human Resources Policies and Procedure Manual contains its non-discrimination and anti-harassment policy statement. Id. ¶ 8. The policy includes a description of prohibited conduct and the appropriate steps an employee should take to report discriminatory conduct. The policy instructs employees to direct complaints under the policy to "their immediate supervisor." Id. ¶ 10. If this is not appropriate, "employees should report such conduct to either the person to whom the supervisor reports or, if the employee is uncertain about who that is, to a corporate officer." Id. In July 1994, Hull attended a training meeting at Standard's corporate offices an he received a copy of the manual. Id. ¶ 16. Hull admits the non-discrimination and anti-harassment policy was covered in the training session but claims it was only skimmed through. Id. ¶ 6 17; P1. resp. ¶ 17.
IV Hull's allegations off sexual harassment
Collins engaged in conduct that Hull claims indicated her interest in a sexual relationship with him. He found Collins' conduct sexually harassing. Collins' purportedly harassing behavior began immediately upon his permanent transfer. Collins gave Hull rides home from work on his first three days at East Monroe. Hull worked the 2:00 to 9:00 p.m. shift. On his first day, Collins told Hull she would give him a ride home and that he could leave early. Def. facts ¶ 36. She explained to him the garage was essentially self supportive after 6:00 p.m. and there was no need for him to stay. Id. ¶ 38. Because Hull had just switched from the overnight shift to the afternoon, he was having a hard time adjusting to the new hours and was glad to leave early. Id. ¶ 35. After the first ride home, Hull concluded that Collins wanted a sexual relationship with him. Id. ¶ 39. When they reached Hull's apartment, Collins "looked him up and down as if he was some type of beef that she was about to purchase." Pl. facts ¶ 63; Hull Dep. at 347-48. Collins asked him what floor his apartment was on and then as she leaned over Hull to look at his apartment, Collins pressed up against his chest and stomach with her upper body without Hull's permission. Pl. facts ¶ 63. Hull perceived these actions as sexual. Id.
On his second day, Collins again insisted on bringing Hull home from work. Id. Collins did not say anything but looked at him suggestively again. Def. facts ¶ 40. When they reached his apartment, Collins mentioned that she was double parked and they should get out of the street. Pl. facts ¶ 65. Hull interpreted this comment to mean that Collins wanted to park and come inside Hull's apartment. Hull perceived this as indicating Collins wanted a sexual relationship with him. Id. Hull thanked her for the ride and told her he would try to be the manager she had expected and that he hoped his performance would be the basis of his evaluation at the garage. Id. Collins' expression changed to a look of "disgust, bewilderment, and a little bit of anger" when he got out of the car. Id. Hull perceived Collins' reaction as disappointment from his rejection.
Collins brought Hull home from work again on his third day. Def. facts ¶ 41. When they arrived at Hull's home, Hull told her "see you tomorrow"; Collins simply replied, "okay." Id. Hull interpreted Collins' behavior as reflecting disappointment in Hull's lack of interest in her and an effort to save face. Id.; Pl. resp. ¶ 41. According to Collins, she offered many employees rides home when their cars broke down or when they were required to work overtime. Def. facts ¶ 37. At the time he transferred to East Monroe, Hull did not own a car and lived close to Collins. Id. ¶ 36. Hull never witnessed Collins offering anyone else a ride home and he did not accept another ride home from Collins after his third day.
Hull claims that Collins' changed her schedule in order to spend more time with him. During Hull's first tenure at East Monroe before he was transferred there permanently, Collins worked the 5:00 a.m. to 1:00 p.m. shift. Pl. facts ¶ 57. Before and after his permanent transfer, Hull worked the 2:00 to 9:00 p.m. shift at East Monroe. After Hull transferred, Collins changed her hours so she arrived at work between 11:00 a.m. and noon. Id. Collins was technically supposed to be at work when the Brinks truck came in the morning at 5:00 a.m. to pick up the bank deposit Monday through Friday. Id. ¶ 59. Schragal testified garage managers at East Monroe were expected to work hours that overlapped with the hours worked by the shift managers they supervised. Def. facts ¶ 48. Procarione expected garage managers to be present at their facilities during the busy part of the day, which was between 7:30 and 8:00 a.m. at East Monroe. Pl. facts ¶ 60. Collins' schedule left the garage without a manager for five or six hours a day. Id. ¶ 58.
Hull testified that Collins asked him out on a daily basis from the time he transferred to East Monroe in mid-March until April 8, 1995. Pl. facts ¶ 66. On one occasion during this time period, Collins said to Hull, "I need a good man" and "you and I should go out." Id. ¶ 66. In response, Hull told her he was happy with his personal life and turned down Collins' invitations. Id. On another occasion, Collins and Hull had a conversation about Collins' fortieth birthday. She told him she "needed a man" and that she wanted to get married. Def. facts ¶ 111. Hull interpreted these invitations and statements as indicating Collins wanted a sexual relationship with him.
Collins' opinion of Hull as a manager began to deteriorate several weeks after he transferred to East Monroe and after Hull refused Collins' invitations to go on a date with her. Pl. facts ¶ 67. Collins became critical of Hull; she refused to support his actions and decisions as a manager. Id. On April 8, 1995, there was an incident between Hull and Twana Richmond, a cashier.Id. ¶ 69; Def. facts ¶ 69. That afternoon, Hull called Richmond over the intercom and Richmond responded in a rude and negative manner. Pl. facts ¶ 69. When Hull went to her booth to find out why she was upset, Richmond verbally abused Hull by swearing at him and calling him offensive names. Id. Hull instructed Richmond to punch out and told her that he intended to discuss disciplining her with Collins. Id. Richmond insisted on talking to Collins, and Hull called her at home. Richmond spoke with Collins and told her that Hull initiated the conflict and had provoked her. Def. facts ¶ 70. Collins told Hull to go home immediately. Id. Hull prepared a disciplinary warning to be given to Richmond for insubordination but Collins refused to allow Hull to issue the warning. Pl. facts ¶ 83. Procarione testified that in general, it is reasonable for shift managers to expect garage managers to back their disciplinary decisions. Procarione dep. at 196. Hull claims that Collins refused to back him up in this incident in retaliation for his rejection of her sexual overtures.
Hull was not pleased with the way Collins handled the Richmond incident. Collins contacted Procarione and the three of them met to discuss the issue. Pl. facts ¶ 83. Hull found it unusual that Collins asked him to leave after he disciplined a subordinate employee. Id. At the meeting, Hull complained that Collins "was not backing him up" with employees and told Procarione, "I do not believe Ms. Collins is interested in me being over here as a manager." Id. ¶ 84. Procarione did not respond to Hull's statement and remained expressionless. Id.
On two or three other occasions, Collins told Hull she and her friends were going out, that they were having fun and that he should join them. Id. ¶ 115. Collins never invited Nana Kubi, another shift manager at East Monroe, to join her and her friends in social activities after work. Pl. facts ¶ 131. Between April 8 and July 1995, Collins invited Hull to attend her father's church on several occasions. Id. ¶ 128. Collins sometimes explicitly asked Hull to attend church; other times, she came into the office on Sundays "dressed to kill" as if she wanted him to see how nice she looked for church. Def. facts ¶ 43. Collins claims she invited other employees, both male and female, to hear her father preach. Id. ¶ 46. Neither Vesey, another East Monroe employee, or Hull are aware of Collins inviting any other men to attend church. Pl. resp. ¶ 46. Collins told Hull not to drive his car to work on July 3, 1995, because of the fireworks crowd; she would bring him home. Other employees drove their cars to work that day. Hull interpreted Collins' instruction not to drive as a sexual advance. He refused Collins' offer of a ride. Pl. facts ¶ 121. Hull interpreted the invitation as indicating that Collins was interested in a sexual relationship with him.
On another occasion in the summer of 1995, Collins asked Hull to leave the garage during his shift, and go to Grant Park with her. Pl. facts ¶ 127. While they sat in the park, Collins talked about the weather and how the park looked. Id. Hull agreed to go to the park with Collins because she was his boss and he did not feel like he had a choice. Id. Hull testified he did not enjoy himself and felt that Collins had forced him into going on a date. Id. Standard claims Collins went to the park with Procarione and other managers and asked many employees to walk in the park to discuss work related matters. Def. facts ¶ 46.
Finally, in July 1995, Collins said to Hull, "Okay, Ken, if you and I can't go out together, can't do anything together, will you at least consider escorting me?" Pl. facts ¶ 129; Def. resp. ¶ 129. Hull told Collins that he was not interested in being her escort. Pl. facts ¶ 129. This was the last occasion that Collins directly asked Hull to got out with her. However, Collins continued to make references to her social activities by telling him where she was going, that it would be fun and he should go. Id.
Collins engaged in other conduct Hull claims was sexually harassing. Collins would often change clothes after her shift. When Hull and Collins worked together, Collins continuously and unnecessarily touched him. Id. ¶ 116. Collins insisted that Hull drive around the facility in a golf cart with her even though there were two golf carts at the facility. Id. ¶ 117. The golf cart was not large enough for both of them so they had to crunch together and Collins placed her arm around the back or Hull's seat. Id. Hull claims that Collins would find excuses to touch him by squeezing past him or into small areas with him. This contact made Hull feel uncomfortable and he viewed it as sexually harassing. Id. ¶ 116. Hull testified that when he was working, Collins would get "dolled up" and "glamorous" by putting on make-up, fake nails and eyelashes, and then would come into the office and watch him. Id. ¶ 119. When Kubi, another shift manager, was working, Collins simply changed her clothes and left the garage. Id. ¶ 120. Collins insisted upon discussing intensely personal subjects with him even though he never initiated such conversations with her. Id. ¶¶ 122-23, 126. Collins offended Hull by making sexually oriented remarks to him about other garage workers.
V Hull's performance at East Monroe
Hull did not have any performance problems at Standard before his second transfer to East Monroe; Hull's 1994 performance evaluation was an overall ranking of "4" out of a possible "5," indicating he always met and usually exceeded requirements. Def. facts ¶ 27. According to Standard, there were a number of problems with Hull's performance after his permanent transfer to East Monroe. Standard claims Collins requested a meeting with Procarione in the spring of 1995 because Hull repeatedly questioned why she would remain in the garage after Hull's shift began and he did not seem to want to take directions from her.Id. ¶ 47. Hull complained that he could not run the garage because of Collins' presence during his shift. Id. Procarione told Hull that Collins was the garage manager, that Hull reported to her, and she could work whatever hours she determined. Id. ¶ 49. Hull disputes this meeting ever took place and claims the only meeting he had with Collins and Procarione was regarding the April 8 incident. Pl. resp. ¶ 49. After the meeting, Procarione instructed Collins to document any problems she had with Hull. Def. facts ¶ 50.
Collins maintained a paper trail regarding Hull's performance.Id. ¶ 51. According to the paper trail documents and Collins' deposition testimony, Hull experienced the following performance problems: he engaged in an unprofessional outburst in front of employees in March 1995 in the midst of a discussion with Collins concerning the release of an employee paycheck; Hull spoke to Richmond's mother in a rude manner in April 1995; Hull refused to assist Richmond when she was the only cashier on duty in April 1995; Hull became quite emotional in May 1995 when Collins asked him about allowing a Standard employee to park at East Monroe; Hull improperly released a lost paycheck to Richmond in August 1995; Hull made a poor management decision in refusing a customer refund in September 1995; Hull failed to solve a problem that a debit card customer had on his shift and failed to solve problems concerning a broken golf cart and a broken lane in September 1995; Hull refused to research out of sequence ticket incidents in August and September 1995; Hull did not complete the 4th of July time cards correctly and became upset concerning the Labor Day time cards; Hull became emotional when Collins questioned him about a $15 shortage on his cashier report in September 1995; Hull failed to accurately complete a daily cash form to report that $1400 was missing; and Hull was unable to accept constructive criticism and constantly made remarks about how Collins operated the garage. Id. ¶¶ 53-65. Collins prepared a paper trail document for each incident. Id.
Hull disputes the accuracy of the paper trail documents and disputes that these documents were prepared prior to the filing of this case. Pl. resp. ¶¶ 53-65. He admits the underlying events, but disputes that he became upset, emotional, or acted improperly in any of these incidents. Id. Hull provides an explanation of each incident and specifically disputes the allegations that he acted improperly. Id. Collins never completed a disciplinary report and Hull was not formerly disciplined under Standard's discipline policy for any of these incidents. Id. Collins never showed Hull any of the paper trail documents. Id. While Procarione was aware of Hull's alleged performance problems, he never saw the paper trail documents before this lawsuit was filed. Pl. facts. ¶ 144.
VI Hull's termination
Sometime after the April 8, 1995 incident, Collins discussed the problems between herself and Hull with Procarione. Def. facts ¶ 78. Procarione thought the problem was that Hull wanted to manage his own garage and could not work while Collins was there. Procarione dep. At 192-95. Collins asked if Hull could be transferred to another division within the company. Procarione informed Collins that she needed to solve her own problems and that transfer was not an option. Def. facts ¶ 78. Procarione was of the opinion the same issues would arise with Hull at any garage because all garages had managers who worked some hours that would overlap with Hull's. Id. Procarione and Schragal told Collins to "cut the cord" with Hull and authorized her to terminate him before his actual termination. Collins dep. at 370.
Collins met with Hull on October 24, 1995. Collins asked Hull if he had any problems that he wanted to discuss and Hull replied that his problems were personal. Def. facts ¶ 81. After some discussion, Collins told Hull he had been letting certain things affect his job performance. Id. ¶ 82. According to Hull, Collins was extremely upset and told him she would tell management that he called her a "bitch" and that she was scared of him in order to justify his termination. Id. She then told him that he was terminated and to leave the garage. Id. ¶ 85. Collins perceived Hull's response as enraged and out of control. Def. facts ¶ 83. Hull told Collins he did not believe she had the authority to terminate him without Procarione's approval. Collins called Procarione while Hull was still in the office. Id. ¶ 89. Collins told Procarione that Hull refused to follow her instruction to leave. Procarione heard a commotion in the background and instructed Collins to contact security to have Hull escorted from the facility. Id. ¶ 91. Although Procarione does not recall, Hull believes he spoke to Procarione on the phone. Id. ¶ 93. Hull told Procarione that Collins was terminating him and he did not think it was fair. Procarione responded that Hull must follow Collins' instructions. Id. Hull did not deny to Procarione that he had engaged in the conduct that Collins alleged or that he believed Collins had sexually harassed him. Id.
Collins contacted security. Maurice Jones, a private security officer, came to the office. Collins told Jones that Hull was just terminated and she wanted him off the property. Id. ¶ 95. Jones told Hull it was best for him to leave and escorted him out. According to Jones, both Collins and Hull were upset. Jones dep. At 57. Later that day, Collins told Procarione that Hull had shouted, pointed his fist at her, threatened her, refused to leave the facility when she told him to do so, and that Hull said, "I'm going to get you bitch." Id. ¶ 101. Hull denies he called Collins any names, threatened her, or refused to leave. Pl. resp. ¶ 101. Procarione approved Hull's termination and told Collins to draft the termination papers. Def. facts ¶ 102. Collins told Procarione that she intended to file a police report. He advised her to wait and think about it. Collins filed a report with the Chicago Police Department. Id. ¶ 103. Hull was contacted by a detective; Hull denied the allegations in the report. Pl. resp. ¶ 103. No action was taken against Hull as a result of the police report. Hull alleges his termination and the filing of the police report were in retaliation for rejecting Collins' sexual advances.
During his time at East Monroe, Hull never contacted Standard's human resources department or anyone at Standard's corporate offices concerning the harassment and discrimination Collins allegedly subjected him to. Def. facts ¶ 123. Hull contacted Schragal once at home and told Schragal that he was "having problems over here with Ms. Collins." Def. facts ¶ 119. Schragal told Hull not to call him at home and ended the conversation before Hull could elaborate. Pl. resp. ¶ 119. Hull did not tell Schragal that Collins harassed or discriminated against him. Def. facts ¶ 119.
DISCUSSION
I Summary judgment standard
A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).
A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993). This language should not be misconstrued to require heightened review in employment cases. The Seventh Circuit has stressed that "there is no separate rule of civil procedure in employment discrimination cases;" rather, the "added rigor" language means only that "courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often, though not always, will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Employment discrimination case or not, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
II The Title VII burden shifting analysis
To succeed with a Title VII claim, a plaintiff must demonstrate that the employer terminated him because of intentional discriminatory reasons. Jackson v. E.J. Brach Corp., 176 F.3d 971, 982 (7th Cir. 1999). A plaintiff may prove a Title VII claim in two ways. He may present direct or circumstantial evidence discrimination was the determining factor in the discharge. Jackson, 176 F.3d at 982. The second, and more common way, is to utilize the indirect, burden-shifting approach for Title VII cases originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Hull focuses on the McDonnell Douglas approach. In order to prevail under the burden-shifting approach, Hull must first establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802; Jackson, 176 F.3d at 982. A successful prima facie showing creates a presumption of discrimination and forces the employer to produce a legitimate non-discriminatory reason for discharge. Id. Once an employer meets this requirement, the burden shifts to the discharged employee to demonstrate that the employer's stated reasons for its actions are pretextual. McDonnell Douglas, 411 U.S. at 802; Jackson, 176 F.3d at 982. Despite these shifting burdens of production, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all time with the plaintiff." Saint Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993). If Hull is unable to meet this burden, his claim fails. Sarsha, 3 F.3d at 1039.
III Quid pro quo sexual harassment
A Legal standard
Title VII forbids an employer from discriminating against an employee for rejecting a supervisor's sexual advances. Quid pro quo harassment occurs in situations where submission to a supervisor's sexual demands is made a condition of tangible employment benefits. Bryson v. Chicago State University, 96 F.3d 912, 915 (7th Cir. 1997). The EEOC's Guidelines on Sexual Harassment, 29 C.F.R. § 1604.11 (a), describe quid pro quo harassment as:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or [2] submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.See also Bryson, 96 F.3d at 915; King v. The Finish Line, Inc., 997 F. Supp. 987, 991 (N.D. Ill. 1998). A multiple factor test provides a "useful framework" for undertaking a quid pro quo analysis. Bryson, 96 F.3d at 915. To establish a prima facie case of quid pro quo sexual harassment under this test, Hull must show: (1) he is a member of a protected group, (2) the sexual advances were unwelcome; (3) the harassment was sexually motivated; (4) his reaction to Collins' advances affected a tangible aspect of his employment; and (5) respondeat superior has been established. Id.; King, 997 F. Supp. at 987; Lacy v. Ameritech Mobile Comm., Inc., 965 F. Supp. 1056, 1073 (N.D. Ill. 1997); Daggett v. Chicago Transit Authority, 1998 WL 831848 *5 (N.D. Ill. Nov. 25, 1998); Robbins v. Bankers Life Casualty, Inc., 1996 WL 341546 *18 (N.D. Ill. June 20, 1996).
B Prima facie case
There is no dispute about the first two factors. Hull is a male and Collins' alleged advances were unwanted. Also, the last factor is undisputed. An employer is subject to strict liability for the quid pro quo harassment of a supervisory employee. Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997);Jansen v. Packaging Corp. of Am., 123 F.3d 490, 494-95 (7th Cir. 1997). The third and fourth factors are critical for the purposes of this motion.
Hull must show that the harassment was sexual in nature.Bryson, 96 F.3d at 915; Robbins, 1996 WL 341546 at *18 (granting summary judgment because no jury could find supervisor's invitation to meet with plaintiff outside the office to discuss work related complaints as a sexual advance). Standard argues summary judgment is appropriate because there was nothing sexual about Collins' conduct towards Hull. None of the seven categories of alleged sexually harassing conduct (the car rides home, Collins' schedule manipulation, telephone calls, physical touching, comments about Collins' personal life, sexual comments about other employees, invitations to socialize) were sexually motivated and none amount to sexual harassment.
Standard's argument is unpersuasive. While Standard is correct that much of Collins' alleged conduct is not sexual harassment, Hull presents sufficient evidence to support a reasonable inference Collins' actions were sexually motivated. It is undisputed that Collins said to Hull she "needed a man" and "you and I should go out." Hull testified that Collins consistently asked him out from mid-March until April 8. It is undisputed Collins said to Hull "if you and I can't go out together, can't do anything together, will you at least consider escorting me?" This comment could reasonably be interpreted as acknowledging Collins' earlier invitations for Hull to go out with her were for romantic or sexual reasons. Hull testified that Collins repeatedly invited him to her father's church and to socialize with her friends. He also testified that Collins consistently touched him unnecessarily while they were at work. It is undisputed that Collins' attitude towards him changed after he refused her invitations. When viewed in the light most favorable to Hull, a reasonable jury could conclude Collins was interested in a sexual relationship with Hull.
This is unlike the cases cited by Standard where defendants' alleged conduct was wholly unrelated to sex. In Robbins, the supervisor accused of harassment asked the plaintiff to meet him outside the office to discuss work related matters. Robbins, 1996 WL 341546 *18. Here, it is clear from the record that Collins' invitations were unrelated to the job. In King v. MCI Telecommunications Corp., 1997 WL 124254 *6 (N.D. Ill. March 17, 1997) summary judgment was granted because even though the plaintiff claimed the defendant purposely pressed up against her in the elevator, there was no evidence of a demand or request. Collins asked Hull out on dates on more than one occasion. Collins' conduct, unlike that of the defendants in Robbins andKing, could reasonably be interpreted as a request for a sexual relationship.
Similarly, Standard's reliance on Baskerville v. Culligan Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995) is inapposite. InBaskerville, the Seventh Circuit determined summary judgment was appropriate on plaintiff's hostile work environment claim where defendant engaged in conduct that was merely boorish. However, a quid pro quo claim is different than a hostile work environment claim. To succeed with his quid pro quo claim, Hull does not need to prove Collins' conduct was sexually offensive. He must only present evidence sufficient to support a reasonable inference there was a request for a sexual relationship and it was a condition of employment. He has done so.
To survive summary judgment, Hull must further show that the harassment affected a tangible aspect of his employment. Bryson, 96 F.3d at 915. Hull must demonstrate a causal link between his rejection of Collins' sexual advances and his termination. Id., king, 997 F. Supp. at 987. Hull must offer more than his own belief that his termination was the result of his refusal. Lacy, 965 F. Supp. at 1074. However, to establish a causal link, Hull is not required to show an actual understanding that job benefits are linked to his submission to sexual advances. Valadez v. Uncle Julio's of Illinois, Inc., 895 F. Supp. 1008, 1016 (N.D. Ill. 1995) Hull must show that Standard "has in fact used the employee's reaction to the harassment as the basis" for the termination decision. Id.
Hull presents sufficient evidence of a causal link between his rejection of Collins' advances and his termination. Collins significantly influenced the decision to terminate Hull. Collins made the initial determination and informed Hull that he was terminated. The fact that Procarione may have authorized Collins' termination does not change this. Procarione was aware of Hull's performance only through Collins. Collins complained to him about Hull and drafted the paper trail documents reflecting his performance problems. Similarly, the fact that Procarione ratified the termination does not change the analysis. Hull "need not establish that the harasser actually carried out the adverse employment action, only that the alleged harasser influenced the party that made the decision." Valadez, 895 F. Supp. at 1015; see also Lacy, 965 F. Supp. at 1074 ("to establish a causal link between the adverse employment decisions and sexual harassment, [plaintiff] must show that [harasser] made or substantially affected the decisions"). Clearly, Collins influenced the decision to terminate Hull.
In addition, a causal link is supported by the temporal proximity between Hull's rejection of Collins' advances and the events leading to his termination. Collins' attitude toward Hull changed a few weeks after his transfer and shortly after he rejected her initial invitations. The paper trail of Hull's performance problems accumulated by Collins began in early April 1995, soon after Hull rejected Collins' most direct and persistent requests to go out with her. The temporal proximity between Hull's rejection of Collins' advances and the events leading to his termination are evidence of a causal link. King, 997 F. Supp. at 991 (a close temporal nexus between the victim's refusal to submit to unwelcome sexual conduct and supervisor's subsequent adverse employment action bolsters a causal link). In short, Hull has established a prima facie case of quid pro quo sexual harassment.
C Pretext
Standard claims it terminated Hull because of the October 24th incident with Collins and his continuing attitude and performance problems. This is sufficient to meet Standard's burden of stating a non-discriminatory reason for the discharge. The burden then shifts to Hull to establish that Standard's reason is pretextual for unlawful discrimination. Hicks, 509 U.S. at 507. To meet his burden, Hull must "produce specific facts that cast doubt upon Standard's stated reasons for its action or raise significant issues of credibility." Valadez, 895 F. Supp. at 1015 (quotingRand v. CF Indust., Inc., 42 F.3d 1139, 1146 (7th Cir. 1994).
Hull has presented sufficient evidence to call Standards' purported reasons for his termination into doubt. All of the material events surrounding the October 24th incident are disputed. Hull testified that he did not threaten Collins or call her a profane name. He also testified that Collins told him she was going to fabricate the story that he threatened her and called her a bitch him in order to justify his termination. Similarly, Hull presents evidence that disputes his alleged performance problems. Hull testified that he did not act inappropriately and was not told by Collins that he had acted inappropriately in any of the situations cited by Standard. Collins disputes Hull's version. At summary judgment the court does not make determinations of credibility. Hull has presented enough sufficient evidence to support a reasonable inference that Standards' reason for terminating him is a pretext for sexual harassment. Accordingly, Standards' summary judgment must be denied on Hull's quid pro quo sexual harassment claim.
IV Sexual discrimination
A Legal standard
Title VII forbids an employer from discriminating on account of gender. 42 U.S.C. § 2000e et seq. To establish a prima facie case of sexual discrimination under Title VII, Hull must show (1) he belongs to a protected class (in this case, males); (2) he performed his job satisfactorily; (3) he suffered an adverse employment action; and (4) Standard treated similarly situated female employees more favorably. Greenslade v. Chicago Sun-Times, Inc., 112 F.3d 853, 863 (7th Cir. 1997). The parties dispute whether Hull can establish a prima facie case.
B. The prima fade case
Hull argues Standard treated similarly situated females more favorably because it did not terminate Richmond for insubordination. He asserts the profanity and verbal abuse that Richmond inflicted upon Hull was equivalent to the insubordination for which he was allegedly terminated. Hull points out that he and Richmond were both covered by the progressive discipline policy and that Procarione considered verbal abuse by an employee or a manager to be equally serious offenses. Hull concludes Richmond was treated more favorably because she was not terminated or even disciplined for her insubordination, while Hull was terminated for his.
Hull's arguments are unpersuasive. To make out a prima facie case, Hull must show that he was treated differently from a similarly situated female manger who had committed the same offense. Sarsha, 3 F.3d at 1042; Greenslade, 112 F.3d at 864. Hull and Richmond were not similarly situated for two reasons. First, it is not clear that they committed the same offense. While both employees were allegedly guilty of insubordination, Hull was not terminated for a single incident of insubordination. There is undisputed evidence of ongoing problems between Hull and Collins. More importantly, Hull was a manager and Richmond was an hourly employee under the union agreement. They were not at the same level within the company and had very different responsibilities. This distinction weighs heavily against Hull's argument that they are similarly situated. Sarsha, 3 F.3d at 1042 (summary judgment affirmed, supervisor and employee not similarly situated); Ulreich v. Ameritech Cellular Communications, Inc., 1999 WL 160838 *6 (N.D. Ill. March 12, 1999) (manager and assistant manager not similarly situated) aff'd 2000 WL 10280 (7th Cir. Jan. 4, 2000). The fact they were both covered by the discipline policy does not alter this conclusion. Clearly, the existence of a company-wide discipline policy which applies to all employees does not make them all similarly situated for Title VII purposes.
Furthermore, Hull has not established that female employees were treated more favorably. Collins and Procarione terminated female employees during Hull's employment. Hull has not produced evidence that any female managers were accused of conduct similar to Hull and were treated more favorably. Hull cannot meet the fourth requirement necessary to establish a prima facie case of sexual discrimination. Accordingly, summary judgment must be granted on this issue.
V Retaliation
A Legal standard
Under Title VII, it is unlawful "for an employer to discriminate against [its] employees because he has opposed any practice made an unlawful employment practice [by Title VII]" or "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter." 42 U.S.C. § 2000e-3 (a). Hull attempts to establish his retaliation claim under the McDonnell Douglas burden shifting mechanism. McDonnell Douglas, 411 U.S. at 802. Hull must show (1) he engaged in a statutorily protected expression; (2) he suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action. Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998). The parties dispute whether Hull can establish a prima facie case.
B Prima facie case
Hull claims he engaged in protected activity by attempting to initiate a discussion with Procarione about Collins' conduct. Specifically, Hull testified that he "hinted" to Procarione that Collins was sexually harassing him by saying "I do not believe that Ms. Collins is interested in me being over here as a manager." Hull testified that Procarione was expressionless and did not respond. Hull contends this made it clear Procarione was not interested in hearing any complaints that Hull had concerning Collins and denied him any opportunity to elaborate on his concerns. After the meeting, Procarione instructed Collins to begin maintaining a paper trail with regard to Hull. Hull also testified that he called Schragal at home and told him he was having problems with Collins and that Schragal abruptly ended the conversation before he could elaborate. Hull concludes that he complained to Standard about Collins' sexual harassment and was discharged in retaliation.
Hull's arguments are unpersuasive. He fails to establish the first element of a prima facie case of retaliation because he never reported his allegations of sexual harassment during his employment. In the meeting with Procarione, Hull never mentioned the sexual nature of his conflict with Collins. Hull said nothing to indicate to Procarione that his problems with Collins were caused by Hull's refusal of Collins' sexual advances. Similarly, when Hull talked to Procarione on the phone after Collins informed him he was terminated, Hull said nothing about Collins' sexual harassment. Instead of explaining what he believed to be the true motive for his termination, Hull merely denied her allegations about his unruly behavior. Hull failed to mention sexual harassment even when he talked to Procarione after his termination. Again, instead of telling Procarione that his problems with Collins stemmed from Collins' unwanted sexual advances, Hull told Procarione about instances where Collins' relatives were responsible for damage to Standard property. Similarly, in his phone conversation with Schragal, Hull said nothing to indicate his problems with Collins stemmed from sexual harassment. Furthermore, despite the fact that he had received training on the anti-harassment policy, Hull never complained about harassment to Standard management or to Standard's human resources department.
The only evidence of protected expression Hull presents is the comment made to Procarione and his phone call to Schragal. Without more, these general comments about Collins do not amount to protected activity. Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1146 (7th Cir. 1997) (summary judgment affirmed where employee complained generally about supervisor but did not raise subject of sexual harassment to anyone in authority); Ashkin v. Time Warner Cable Corp., 52 F.3d 140, 144 (7th Cir. 1995) (judgment affirmed where plaintiff's complaints about supervisor failed to mention sexual conduct). Failure to make a complaint about actions that violate Title VII dooms a retaliation claim.Ashkin, 52 F.3d at 144. In short, Hull cannot establish a prima facie case of retaliation because he has not presented sufficient evidence to support a reasonable inference he engaged in protected activity. Accordingly, summary judgment must be granted on Hull's retaliation claim.
VI Punitive damages
Standard moves for summary judgment on Hull's prayer for punitive damages. The Supreme Court has determined that an employer may not be liable for punitive damages for "the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's `good-faith' efforts to comply with Title VII." Kolstad v. American Dental Ass'n, 119 S.Ct. 2118, 2129 (1999). In the sexual harassment context, an employer's good faith can be established by the dissemination of a written non-discrimination and anti-harassment policy with an effective reporting mechanism. Id. (citing Harris v. L L Wings, Inc., 132 F.3d 978, 984 (4th Cir. 1997) (the institution of a written sexual harassment policy goes a long way towards dispelling any claim about the employer's reckless or malicious state of mind)). The Supreme Court explained in Kolstad, "Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms."Kolstad, 119 S.Ct. at 2129 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998).
It is undisputed Standard had a non-discrimination and anti-harassment policy in effect during Hull's employment. Under the policy, it was a violation to sexually harass or discriminate against another employee. The policy designated the proper steps an employee could take to report harassment and discrimination. Hull received a copy of the policy and attended a training session where the policy was covered. Hull never complained about sexual harassment to Procarione, Schragal, other Standard management or to Standard's human resources department. The fact that Hull did not avail himself of the anti-harassment policy and procedures does not indicate Standard lacked good faith. Accordingly, summary judgment must be granted on Hull's prayer for punitive damages.
CONCLUSION
The motion for summary judgment is granted in part and denied in part. Judgment is entered for Standard on Hull's Title VII sexual discrimination and retaliation claims, and on the claim for punitive damages. The motion is denied with respect to the sexual harassment claim.