Opinion
No. 97 C 50381
March 6, 2001
MEMORANDUM OPINION AND ORDER I. Introduction
Plaintiff Janice Adkins ("Adkins") filed a seven-count, second-amended complaint against her former employer, Kelly-Springfield Tire Company ("Kelly-Springfield") and against four former male coworkers. On June 2, 2000, the court granted the parties' stipulation to dismiss with prejudice the individual defendants, thus disposing of the state law claims brought solely against the individual defendants (Count IV — defamation; Count V — assault; and Count VI — civil conspiracy). On October 18, 2000, the parties filed, and the court granted, a joint motion to dismiss with prejudice Counts II (retaliation), III (breach of contract), and IV (negligent retention). Thus, the sole remaining claim is Count I, wherein Adkins alleges she was sexually harassed by coworkers during her employment at Kelly-Springfield, in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq.
Per Order dated October 14, 1998, the court also dismissed state law claims for intentional infliction of emotional distress and invasion of privacy against the individual defendants, pursuant to their Rule 12 (b)(6) motion to dismiss.
Currently pending before the court are two motions. Kelly-Springfield has filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56. It has also filed a motion to dismiss under Rule 37, arguing Adkins has committed discovery violations which warrant dismissal of the case. Jurisdiction is based on 28 U.S.C. § 1331, 1367, and 42 U.S.C. § 2000e-5 (f)(3). Venue is proper under 28 U.S.C. § 1391 (b)(1), (2) as Kelly-Springfield resides in this district and division and the events giving rise to this lawsuit occurred in this district and division.
II. Preliminary Matters
Kelly-Springfield has filed a motion to dismiss under Rule 37, arguing Adkins' lawsuit should be dismissed as a sanction for discovery violations. Specifically, Kelly-Springfield argues Adkins disclosed the following documents for the first time on July 21, 2000: (1) notes Adkins wrote in 1997 regarding events which form the basis of her claims; (2) internal communications of management employees dated May 16, 1997; (3) a psychological written report by Terrence Lichtenwald, PhD ("the Lichtenwald report"); and, (4) a written interview of Adkins which Marie A. Roman, PhD, authored ("the Roman report").
The court finds the requirements for a Rule 37 dismissal have not been met here. Kelly-Springfield argues fact discovery closed on June 30, 2000. Yet as for expert witness discovery, the parties' case management order states the parties would set a schedule for expert witness discovery, and it appears no such schedule has been set. See Def. Exh. B, ¶ III (1). Assuming Adkins designates Lichtenwald and/or Roman as expert witnesses, she is under no obligation to disclose their identities or the existence of the Lichtenwald and Roman reports until such a schedule is set and until she designates one or both of them as expert witnesses. Thus far, Adkins has retained them as consulting experts and both sides agree the criteria for disclosing the facts known or opinions held by a consulting expert have not been met here. See Fed.R.Civ.P. 26 (b)(4)(B), 35(b).
The same reasoning applies to Adkins' notes, which were prepared as part of the Lichtenwald report. Kelly-Springfield argues it has been unfairly prejudiced by the lack of disclosure, yet has failed to point to any new information in Adkins' notes of which it had not been previously aware. In fact, Adkins states every statement in her notes had already been disclosed to Kelly-Springfield in response to other discovery requests. (21. Resp., ¶ 4) As for the internal communications of management employees dated May 16, 1997, this originated from Kelly-Springfield. Kelly-Springfield's motion to dismiss under Rule 37 is denied.
Kelly-Springfield also moves to strike Adkins' affidavit, filed in response to its motion for summary judgment (P1. Exh. C), and the court agrees. Adkins was deposed extensively and given ample opportunity to make a complete record. In addition, paragraphs eight and nine are merely conclusory statements, adding nothing to the record. The affidavit is stricken. See, e.g., Kalis v. Colgate-Palmolive Co., 231 F.3d 1049, 1055 (7th Cir. 2000).
III. Facts
Adkins started working at Kelly-Springfield in 1978 and during all relevant times was an hourly employee, subject to a union contract. (LR56.1(a) ¶¶ 9-10) From 1979 until April 1993, she worked in Department 515, during which time she had no complaints about her working environment. (Id.) At some point, Adkins suffered a cervical spine injury and underwent a laminectomy in early 1993. (Id. ¶ 12) As a result of this surgery, Adkins had medical restrictions which prevented her from doing her job in Department 515. (Id. ¶ 12) To comply with her medical restrictions, Kelly-Springfield placed Adkins in Department 530 on the third shift, as a laminator-operator/service person. At that time, she was the only fulltime female employee working on the third shift in Department 530. (LR56.1(b) ¶ 4) Another female employee, Sharon Mader, was assigned to the third shift in Department 530 in December 1994. (Id.)
Department 530 laminates different types of farm tractor tires and has only one job classification, that of laminator-operator. (Id. ¶ 19, 23) The laminator-operator job classification has two different job functions. One function is to actually operate the tire laminating machine; the other is to supply the machines with tire carcasses and rubber for the lamination process. (Id. ¶ 19; LR56.1(a) ¶ 13) For the majority of her tenure in Department 530, Adkins worked almost exclusively as the service person, servicing three of the four laminating machines. (LR56.1(b) ¶ 20; LR56.1(a) ¶ 15) As part of her duties, she drove a forklift. While the forklift theoretically was assigned to Department 530, employees from other departments could borrow the forklift on an as-needed basis.
When Adkins initially transferred into Department 530, she got along well with her coworkers, even bringing in baked goods. (LR56.1(a) ¶ 17) She remained on friendly terms with her coworkers until the Fall of 1994. At that time, problems began to develop and Adkins had disagreements with both male and female employees. ( Id. ¶ 19) She was generally unhappy with the way they did their jobs and they, likewise, were unhappy with the way she did her job. ( Id. ¶ 22; LRS6.1(b) ¶ 29) Adkins felt she could not do anything well enough to please everyone, and appeared to get caught in the middle of disputes between the operators and supervisor regarding the production schedule. (LR56.1 (b) ¶ 26)
In the Fall of 1994, soon after she began experiencing friction with her coworkers, Adkins began to be the subject of anonymous hostility. Specifically, the following events occurred:
• the seat of Adkins' forklift was "greased" several times, resulting in Adkins unknowingly having grease on the seat of her pants, and on one occasion, an unknown person threw dirt and rubber on the seat;
"Greased" in this context means one employee intentionally places grease on an object so that it ends up on another employee.
• Adkins continuously found bottle caps in her coat pocket, her smock, and in and around her work area until she left Kelly-Springfield's employment, and Adkins believed the bottle caps had a sexual connotation;
Management found no other employee who admitted to understanding the bottle caps to have a sexual connotation. (LR56.1(a) ¶ 68)
• Adkins' coat and smock were "greased" several times;
• on one occasion, a stink bomb was placed under the seat of her forklift, releasing a sulfur-like smell when she sat on the forklift; and
• on one occasion, Adkins found a paper towel on the pole where she hung her coat, on which was written "crying towel" (apparently in reference to the number of times she complained to management about her coworkers).
(LR56.1(a) ¶¶ 34(a)-(e); LR56.1(b) ¶¶ 9-12)
Each time one of these anonymous acts of harassment occurred, Adkins complained to management. Management met with each employee in the department, conducted interviews, and threatened the employees that if the harasser's identity became known, that person would be immediately terminated. (LR56.1(a) ¶¶ 35, 68) Management also increased its presence in her work area in an attempt to prevent any more harassment. Management never came up with any evidence identifying the culprit of any of the acts of harassment. (Id. ¶ 36) On two occasions, in March and April 1997, to determine whether the harassment to which Adkins was being subjected was based on her gender, the Business Center Manager, Bob Horn, interviewed other female employees in Department 530, asking them whether they had any complaints or were experiencing similar problems. (Id. ¶ 68, 70) They stated they did not have any complaints. (Id.) Horn concluded Adkins was not being sexually harassed and he was facing a situation where coworkers simply were not getting along. (Id. ¶ 68) Relationships between Adkins and her coworkers ultimately deteriorated to the point where the union told Adkins' coworkers not to talk to her. (P1. Exh. M, Knautz dep., p. 38)
Management also regularly met with Adkins and her husband (who also worked at Kelly-Springfield) to brainstorm about ways to eliminate the harassment. (LR56.1(a) ¶ 35)
Adkins also complains of the general atmosphere at Kelly-Springfield. She states hand gestures simulating oral sex were continually made in her presence (although not directed at her). (LR56.1(a) ¶¶ 43(a), 46; LR56.1(b) ¶¶ 15-17) For example, Adkins saw a coworker "hand-feeding" her supervisor. (LRS6.1(b) ¶ 16) The gesture involved the coworker simulating a penis going in and out of the supervisor's mouth, with the supervisor making "gulping" sounds. (Id.)
Sexually suggestive nicknames and comments were commonplace and, in fact, were broadcast over the plant's public address system. (LR56.1(a) ¶¶ 43(a)-(c); LR56.1(b) ¶ 15) Such nicknames included: Puke Semen (whose real name was Duke Sammon), Round Mouth (having a connotation involving oral sex), Brown Nose, Johnny Popper (having a connotation involving ejaculation), and Poopy Dick (having a connotation involving anal sex). (Def. Exh. D, Adkins dep., pp. 399-400, 403-06) An example of a comment Adkins heard over the public address system was: "Hey, Duke, What's that white stuff dripping off of your chin." (LR56.1(a) ¶ 48) Other phrases which were in the workplace but not heard over the public address system included: "mud shark" (which apparently meant a white woman who has sex with a black man); "spank the monkey" (apparently meaning the act of patting someone on the head while the person is performing oral sex on a man); and "monkey face" (a black person). (Def. Exh. D, Adkins dep., pp. 401-03)
Tom Vanderheyden, one of Adkins' male coworkers, nicknamed Adkins "Muff", "Muffie," or "Muffin." (LR56.1(b) ¶ 14) The parties dispute the meaning of this nickname. According to Vanderheyden and other male coworkers, the reference was to the fact that Adkins had brought baked goods, including muffins, to work. Adkins believed the nickname had a sexual connotation, although the record is unclear from where she derived such a belief.
Coworkers told boorish, sexually suggestive stories and jokes in Adkins' presence, and she also told sexually suggestive jokes and stories. (LR56.1(a) ¶¶ 43(a), 47; Def. Exh. D, Adkins dep., pp. 95-98) In addition, in 1993, Adkins saw a naked doll in the workplace and on one occasion saw two of her coworkers looking at sexually suggestive magazines in 1993. (LR56.1(a) ¶¶ 43(d), 45) In 1995, Adkins met with an interim Human Resources Manager to complain about the "harassment she was enduring" in Department 530. (LR5E.1(b) ¶ 34) The manager told her to ignore it and it would go away. (Id.)
At all relevant times, Kelly-Springfield has had a non-harassment/non-discrimination policy, which is posted throughout the plant. (LR56.1(a) ¶ 60) The policy is not limited to conduct prohibited by federal or state law. Rather, the policy prohibits anything that would interfere with an employee getting his or her work done. (Id. ¶ 61) The policy defines the conduct that is prohibited and sets forth various avenues an employee can follow to report objectionable conduct. (Id.) The union contract also contains a clause incorporating the company's non-discrimination/non-harassment policy. (Id. ¶ 67)
Adkins' last day of work at Kelly-Springfield was April 9, 1997. (Id. ¶ 16) On April 10, 1997, she sought and received a medical leave for a mental disorder, and has never sought to return to Kelly-Springfield. (Id.) She filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on May 20, 1997, alleging she was discriminated against on the basis of her sex in that she was sexually harassed. (Id. ¶ 5) She did not allege retaliation in her charge. (Id.) The EEOC issued a Right-to-Sue letter dated August 13, 1997, and Adkins filed this lawsuit on November 17, 1997. (Id. ¶ 7-8)
IV. Analysis
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The question to be determined is whether, if the record of the summary judgment proceeding were the record at trial, a reasonable fact finder could find in favor of the nonmoving party. Tobey v. Extel/JWP, Inc., 985 F.2d 330, 332 (7th Cir. 1993). The record is to be examined in the light most favorable to Adkins, but conclusory allegations will not suffice. Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999). Intent and credibility are crucial issues in employment discrimination cases and, therefore, the summary judgment standard is applied with added rigor in such cases, but summary judgment will not be defeated just because motive or intent are involved. Id. (citations omitted).
When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment, Title VII is violated. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78 (1998). A plaintiff must show she subjectively viewed the environment as abusive and must also show a reasonable person would find it hostile. Filipovic v. K R Express Sys., Inc., 176 F.3d 390, 398 (7th Cir. 1999). The objective severity of the harassment is judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.Oncale, 523 U.S. at 81. In evaluating the totality of the circumstances, the court considers: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive statement; and, whether it unreasonably interferes with an employee's work performance. Wilson v. Chrysler Corp., 172 F.3d 500, 510 (7th Cir. 1999). Whether such an environment exists is a question for the court. Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 345 (7th Cir.),cert. denied, 528 U.S. 874 (1999). In circumstances involving coworker harassment, the employer is held liable if it has been negligent in discovering or remedying the harassment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 724 (1998); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998)
In Illinois, a charging party must file a discrimination charge within 300 days of the alleged discriminatory act and failure to do so renders the charge untimely. 42 U.S.C. § 2000e-5 (e)(1); Filipovic, 176 F.3d at 396. Here, Kelly-Springfield argues Adkins' sexual harassment claim is limited to conduct which occurred between July 24, 1996, and May 20, 1997. Adkins argues the continuing violation theory applies, thereby extending the limitations period back four years.
The continuing violation doctrine is designed to accommodate plaintiffs who can show there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of the pattern or policy are considered timely. Hardin, 167 F.3d at 344. In other words, the continuing violation doctrine comes into play in a sexual harassment case only when the plaintiff was reasonable not to perceive her working conditions as intolerable until the acts of harassment had, through repetition or cumulation, reached the requisite level of severity. DeClue v. Central Ill. Light Co., 223 F.3d 434, 435 (7th Cir. 2000)
It is apparent here that Adkins believed she was a victim of harassment long before she filed her discrimination charge. Adkins transferred into Department 530 in the Spring of 1993, and found it to be hostile and offensive from the beginning, or shortly thereafter. (Def. Exh. D, Adkins dep., pp. 80, 86-88) Adkins stated she began keeping notes on a regular basis about the goings-on in the department in the Fall of 1994 because she perceived a pattern of inappropriate behavior. At the very latest, by August of 1995, Adkins and her husband felt "very strongly" that her coworkers' hostility towards her was "gender based." (Id. p. 159; See also id. pp. 153-55) It follows that it would not have been unreasonable for her to seek redress for the conduct about which she complains long before May 1997. See Hardin, 167 F.3d at 344-45.
The court concludes she may not reach back and rely on events occurring prior to the 300 days before she filed her discrimination charge. See id. Thus, her sexual harassment claim must rise and fall on conduct occurring between July 24, 1996, and May 20, 1997. See id. Accordingly, the sexually suggestive stories Vanderheyden told Adkins in 1995, his statements about women which he related to her in 1995, the naked doll Adkins saw in 1993, and the one occasion when Adkins saw two of her coworkers looking at sexually suggestive magazines in 1993 are barred as untimely.
In addition to being time-barred, Adkins' claim that Vanderheyden and Osbaugh stated in 1993 they did not want to see the department become a "hospital for women" (LR56.1(b) ¶ 5), is rejected as being hearsay. The three men allegedly involved in the conversation denied or could not recall that phrase being used. Thus, the court is left with Adkins' version. The court disagrees with Adkins that the statement, originating from Vanderheyden and/or Osbaugh and repeated by Duane Bartelt, a manager, according to Adkins, is an admission against party interest.
Nevertheless, this leaves the majority of the conduct about which Adkins complains. In viewing the totality of the circumstances, the court finds Adkins has not brought forth evidence from which a reasonable factfinder could conclude she suffered a hostile and offensive work environment such that the terms and conditions of her employment were altered. The conduct about which Adkins complains falls into two categories: conduct directed specifically at her (the greasings, the bottle caps, the stink bomb and the "crying towel" incident (LR56.1(a) ¶ 91 34(a)-(e)), and the sexually suggestive nicknames, hand gestures, and sexual comments which were part of the general atmosphere in Department 530 (LR56.1(a) ¶¶ 43(a)-(c), 46; LR56.1(b) ¶¶ 15-17). The court finds both categories of conduct insufficient to carry the day, albeit for different reasons.
The court finds the pranks are not evidence of sexual harassment. Adkins argues conduct that is not sexual in nature can still, nevertheless, be gender-based. The court agrees. See e.g., Hardin, 167 F.3d at 345 (male employee's conduct need not be explicitly sexual to create a hostile environment; "the complained of conduct must have a sexual character or purpose to support a Title VII claim") (emphasis on original). However, in this case the pranks, nonsexual in nature, were anonymous and could have been done by male or female coworkers. Anonymity does not always insulate pranks from being considered evidence of a sexually harassing environment. See Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1009-10 (7th Cir. 1994) (pranks in all-male department, except for plaintiff, contributed to sexually harassing environment); see also Williams v. General Motors Corp., 187 F.3d 553, 563-64 (6th Cir. 1999) (anonymous pranks, when viewed in their surrounding circumstances, including threatening language and sexually aggressive innuendo from a supervisor, could be viewed as work-sabotaging behavior that created a hostile work environment); Morris v. American Nat'l Can Corp., 730 F. Supp. 1489, 1496 (E.D, Mo. 1989) (anonymous vandalism, when considered in context of graphic, sexually offending conduct directed at plaintiff, contributed to sexually harassing environment), aff'd in part. rev'd in unrelated part, 952 F.2d 200 (8th Cir. 1991). However, in these circumstances Adkins admits she experienced conflicts with both male and female employees.
In referring to the specific actions directed at Adkins as "pranks," the court does not mean to minimize the seriousness of these actions but, rather, uses the word only for ease of reference. Using the word "harassment," as Adkins suggests, gets confusing when such a word has legal significance in a Title VII sexual harassment case.
Even if the court were to assume the male coworkers in Department 530 were responsible, there is no evidence the purpose of their actions was Adkins' gender. The record is replete with evidence of a personality clash between Adkins and her male coworkers. She did not like how they did their jobs and they did not like how she did hers. Adkins argues it remains for a factfinder to determine whether such conduct was the result of a personality clash or because of Adkins' gender. The court disagrees, given the dearth of evidence showing any gender-based animus emanating from the male coworkers towards Adkins. See Hardin, 167 F.3d at 346 (no evidence to suggest supervisor's nonverbal conduct, including allowing a door to close in plaintiff's face, startling her from behind, and cutting her off in the parking lot, was motivated by discrimination); Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167-68 (7th Cir. 1996) (in affirming grant of summary judgment, Seventh Circuit stated male coworker's repeated references to plaintiff as "sick bitch" and other verbal conduct reflected a personal animosity rather than anything having to do with a belief held by the male coworker that plaintiff did not belong in the workforce or was otherwise not entitled to equal treatment with male employees). Adkins herself stated Vanderheyden and Osbaugh frequently criticized and ridiculed at least one other male coworker. (Def. Exh. D, Adkins dep., p. 63) As further evidence of the lack of gender-based animus, another female coworker in Department 530, Sharon Mader, did not experience any problems working alongside the same men.
As for the sexually suggestive nicknames, comments, and hand gestures, none of this conduct was directed at Adkins. Adkins was not physically touched, she was never the subject of uninvited sexual solicitations, intimidating words or acts, nor was she subjected to pornographic pictures on a regular basis. See Baskervi1le v. Cullician Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). The court believes the conduct about which Adkins complains, although course, boorish, and tinged with sexual innuendo, falls on the side of being vulgar and mildly offensive but not deeply offensive and sexually harassing. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144-45 (7th Cir. 1997) (in affirming district court's grant of summary judgment, Seventh Circuit stated male coworker's repeated references to female customers as "bitchy" or "dumb," ogling other female employees, flirting with plaintiff's relatives, and commenting on the anatomy of a female coworker, while off-color, juvenile, and inappropriate, did not objectively establish a sexually hostile work environment); Baskerville, 50 F.3d at 431; Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir. 1993) (supervisor asking plaintiff for dates, calling her a "dumb blond," placing "I love you" signs in her work area, and attempting to kiss her did not meet the standard for actionable sexual harassment). Considering the totality of the circumstances, the court finds Adkins has not produced sufficient evidence from which a reasonable factfinder could conclude she was subjected to sexual harassment so severe or pervasive that it altered the conditions of her employment and created an abusive working environment. V. Conclusion
Kelly-Springfield argues the comments, nicknames, and obscene gestures could not be considered harassment because all employees were exposed to such conduct, relying on Holman v. State of Ind., 211 F.3d 399 (7th Cir.), cert. denied, 121 S.Ct. 191 (2000). The court rejects this argument, finding Holman to be inapposite. Obviously, in a workplace permeated with sexual harassment, both men and women would be aware of it; Title VII was enacted to eradicate such environments. See, e.g., Wilson, 172 F.3d at 509-11 (openly obscene, routine harassment rose almost to the level of an institutional norm).
The court rejects Adkins' attempt to show the existence of a hostile work environment via the Lichtenwald report, which is based on hearsay when used for this purpose.
For the reasons set forth above, Kelly-Springfield's Rule 37 motion to dismiss is denied and its Rule 56 motion for summary judgment is granted. This cause is hereby dismissed in its entirety.