Opinion
Cause No. IP99-1218-C-T/G
October 25, 2000
Entry on Defendant's Motion for Summary Judgment and Motion to Strike
The Defendant, Thomson Consumer Electronics, Inc. ("Thomson"), moves for summary judgment on all claims set forth in the Complaint. Thomson also moves to strike portions of the evidentiary material submitted by Plaintiff, Aletha Garton, in opposition to its summary judgment motion. Having considered the motions, the parties filings, and having heard oral argument, the court makes its ruling.
I. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure authorizes summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). If the moving party carries this burden, then the nonmovant must "go beyond the pleadings" and present specific facts which show that a genuine issue exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
II. Motion to Strike
Thomson moves to strike portions of the evidentiary material submitted by Ms. Garton in opposition to its summary judgment motion, portions of Plaintiff's Response to Statement of Material Facts ("RSMF") and portions of Plaintiff's Statement of Additional Material Facts ("SAMF") on the grounds that the factual assertions are immaterial, (Pl.'s Aff. ¶¶ 1, 28; RSMF Nos. 34, 79, 84; SAMF No. 121), directly contrary to her deposition testimony, (Pl.'s Aff. ¶¶ 4, 7-10; RSMF Nos. 6, 26, 27, 30, 33, 44; SAMF Nos. 88, 91, 92 and 94), not limited to a single factual proposition, (SAMF Nos. 84, 85, 88, 94, 95, 98-101, 104, 107-08, 114, 117, and 119-121), based on inadmissible hearsay, (Pl.'s Aff. ¶ 21; William Garton Aff. ¶ 3; SAMF Nos. 94, 101 and 115), or the evidentiary material cited in support fails to support the assertion, (SAMF No. 96).
Thomson's Statement of Material Fact ("SMF") No. 34 is: "In sum, Plaintiff had a work experience at Thomson prior to January 1998." Plaintiff's RSMF No. 34 is:
Plaintiff admits. Garton was making $14.65 per hour, for a yearly income of $49-50,000 (including overtime), with benefits that included medical insurance, dental insurance, life insurance, five weeks paid vacation pay (sic), five paid sick days, a pension plan and 4-1K with matching. At present, she is unable to work at all. Plaintiff's Affidavit, ¶ 1. Nester admitted that Garton had worked at Thomson for twenty years and was a long term employee. Nester Dep., p. 16.
SMF No. 79 states: "On February 11, 1998, Plaintiff was placed on a leave of absence based on her physician's diagnosis of alleged `anxiety' and `stress.'" RSMF is:
Plaintiff admits. She was having panic attacks. She would try to leave the house, but would have to go home. She got to the point where she could not go anywhere alone, and only went out if accompanied by her daughter or her husband. She would not even sit outside in her own yard. The panic attacks continue to this day, but might be improving somewhat. (citation omitted).
Given the court's ruling on Thomson's summary judgment motion and the reasons therefore, see infra, the assertions contained in these RSMFs regarding Ms. Garton's damages and possibly her subjective perception of her work environment, even if considered, would have no bearing on the ruling. It, therefore, is unnecessary to decide Thomson's motion to strike with respect to them. The court declines to strike paragraphs 1 and 28 from Ms. Garton's affidavit as Local Rule 56.1 does not require that the evidentiary submissions submitted in support of material facts contain only "material facts." The court, of course, will disregard any immaterial matters contained within either party's evidentiary submissions.
Thomson's claim that paragraphs 7-10 of Ms. Garton's affidavit, RSMF Nos. 26, 27, 30, 33, 44, and SAMF Nos. 91-92 and 94, contradict Ms. Garton's prior deposition testimony is well-taken. "[A] plaintiff cannot create an issue of material fact merely by manufacturing a conflict in [her] own testimony by submitting an affidavit that contradicts an earlier deposition. . . ." Piscione v. Ernst Young, L.L.P., 171 F.3d 527, 532 (7th Cir. 1999). When a deposition and affidavit conflict, the affidavit is to be disregarded unless it is shown that the deposition testimony was mistaken, "perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy." Id. at 532-33 (quotation omitted).
The statements in paragraphs 9 and 10 of Ms. Garton's affidavit, also recounted in RSMF Nos. 30 and 33 and SAMF No. 94, are contrary to her prior deposition testimony.
At her deposition, though Ms. Garton first testified that she could not recall having any occasions to file a grievance or formal complaint against anyone prior to January 1998, (Garton Dep. at 17-18), she subsequently testified that prior to January 1998, there was no one in the Maintenance Department she didn't like, no one that she didn't trust, no one with whom she didn't get along, no one she felt treated her poorly, and that up through January 1998 she had a good experience at Thomson. (Garton Dep. at 35.) In her affidavit, however, Ms. Garton states:
9. Prior to January 1998, I had reasons to file complaints against co-workers, but declined to do so. Nevertheless, it would be false to say that there was nothing to complain about. I withheld complaints on many occasions prior to the incident in question in an effort to avoid the very hostility I encountered in this case. A computer disk containing pornographic material was brought into my workplace. I later heard the men discussing it, revealing that it depicted women urinating on men's heads. At other times, derogatory statements were made about women in the workplace. Hustler magazines were lying around. Some men just did not like to work with me because I was a woman. John Grey once told me to "Fuck Off" and walked away from me rather than work with me. When I confronted him about talking to me in that manner, he said that if I could not tolerate "being talked to like a man, then get the hell out of the department." Nester stepped in on that one and John Grey never gave me any more trouble. These events occurred about a year before I complained about the calendar.
10. The other problems I encountered were offensive but had not affected my work relationships, I believe, because I did not complain about them. I just put up with it.
(Garton Aff. ¶¶ 9, 10.) RSMF Nos. 30 and 94 contain nearly verbatim statements. RSMF No. 33 denies SAMF No. 33 which states that "no one had treated [Ms. Garton] poorly prior to January 1998." The RSMF adds that "John Grey would not work with [Ms. Garton], but Mr. Nester stepped in and solved the problem."
Ms. Garton's tries to create a dispute of fact on these matters, but the statements in her subsequent affidavit contradict her prior deposition testimony, and she has not shown that her deposition testimony was mistaken. Therefore, these statements should be disregarded and are STRICKEN from paragraphs 9 and 10 of Ms. Garton's affidavit, RSMF Nos. 30 and 33 and SAMF No. 94.
The statements to which Thomson objects in paragraphs 7 and 8 of Ms. Garton's affidavit, RSMF Nos. 6, 26, 27, 44 and SAMF No. 91, 92 also contradict Ms. Garton's prior deposition testimony. As for the statements regarding discipline in paragraph 4 of her affidavit and SAMF No. 88, however, it is not clear from the cited portions of the deposition testimony that reference is being made to the Union. Given the bases for the court's ruling on Thomson's summary judgment motion, discussed below, none of these statements is a material fact, that is, potentially outcome determinative. Even if all of these factual assertions were considered, none would affect the summary judgment ruling. Therefore the court need not strike these RSMFs, SAMFs, and statements in Ms. Garton's affidavit.
Plaintiff's SAMF Nos. 84, 85, 88, 94, 95, 98-101, 104, 107-08, 114, 117, and 119-121 are not limited to a single factual proposition. In responding to the motion to strike, Ms. Garton offers no explanation as to why it was not practicable to limit the contents of these SAMF to a single factual proposition. Rather, she argues that her SAMF substantially complies with the local rule. These SAMF do not comply with Local Rule 56.1's requirement that the assertions of material fact "must consist of concise numbered sentences with the contents of each sentence limited as far as practicable to a single factual proposition." S.D. Ind. L.R. 56.1(f)(2). These SAMFs routinely contain three sentences and as many as six sentences. However, even if taken as true, none of these factual assertions makes any difference in the outcome of Thomson's summary judgment motion. Therefore, it is not necessary to strike these assertions.
It should be noted, however, that SAMF No. 94 is stricken because it relies on statements in Ms. Garton's affidavit which contradict her prior deposition testimony.
Thomson contends that the following are based on inadmissible hearsay: Pl.'s Aff. ¶ 21, William Garton Aff. ¶ 3, RSMF No. 70, and SAMF Nos. 94, 101 and 115. As indicated above, SMF No. 101 makes no difference in the outcome of the summary judgment motion, even if it is considered. The same can be said about SAMF No. 115.
Because the court has found that SMF No. 94 should be stricken as it relies on a statement in Ms. Garton's affidavit contradicting her prior sworn testimony, the court need not consider whether it also relies upon inadmissible hearsay.
Thus, it is not necessary to strike these factual assertions. As for RSMF No. 70, paragraph 21 of Ms. Garton's affidavit, and paragraph 3 of Mr. Garton's affidavit, the court agrees with the Plaintiff that pursuant to FED. R. EVID. 801(d)(2)(D) the statements of Heather Presnell do not constitute hearsay. The challenged statements concern the conduct of Ms. Garton's co-workers during the February 19 sexual harassment sensitivity training. Thomson has identified Ms. Presnell as its EEO Coordinator which is a sufficient basis upon which to find that Ms. Presnell's statements concerned a matter within the scope of her agency or employment with Thomson.
Thomson argues that the evidentiary material cited in SAMF No. 96 fails to support the assertion therein. Ms. Garton responds that the SAMF contains a typographical error and the cited pages of Mr. Nester's deposition testimony were intended to be pages 55-56. These pages do provide support for the factual assertion in SAMF No. 96. The motion to strike is therefore DENIED as to SAMF No. 96.
III. Factual and Procedural Background
The following facts are supported by proper citations to admissible evidence and are taken in the light most favorable to Ms. Garton, the non-moving party, with all reasonable inferences based on the facts drawn in her favor. This presentation is limited to those facts which are material to Thomson's summary judgment motion.
Thomson maintains a manufacturing facility in Marion, Indiana. Aletha Garton was employed as a maintenance specialist in the Maintenance Department (also referred to as maintenance shop) of the VLS plant which department consists of approximately 32 maintenance specialists, divided into 4 crews. Ms. Garton was assigned to "C" crew, a day-shift crew, along with seven male co-workers. She was the only woman on the "C" shift and the only woman in the maintenance shop. Each maintenance specialist is assigned a work bench and shares the bench with another maintenance specialist. Ms. Garton shared her bench with Steven Roland, who was assigned to "B" crew, a night-shift crew.
Prior to January 1998, Ms. Garton had no reason to file any grievance or make any formal complaint against any of her co-workers. There was no reason that she would not want to work with any of her co-workers, and there was no one in the Maintenance Department whom she did not trust, like or with whom she did not get along. No one had treated her poorly prior to January 1998. She had a good work experience at Thomson up to January 1998.
In late December 1997, Ms. Garton made a comment to William Nester, Lead Supervisor for the Maintenance Department, about a swimsuit calendar Mr. Rowland had posted at the work bench he shared with her. The photo for the month of February, which Ms. Garton describes as particularly offensive, was of a woman laying on a beach wearing thong underwear. The photo consisted of little more than a shot of the woman's bare backside. Some of the other pictures in the calendar revealed partially exposed nipples.
Sometime in January 1998, Terry Moody, Manager of the Department, toured the maintenance shop and observed Mr. Rowland's swimsuit calendar. Because Mr. Moody believed the calendar was inappropriate in the workplace and may have violated Thomson's sexual harassment policy, he instructed Mr. Nester to have the calendar removed. Mr. Nester subsequently instructed Mr. Rowland to remove the calendar. It was removed, but within a day or so, it resurfaced with cut-out "clothes" covering the female models. Mr. Nester again ordered the calendar removed and repeated his instructions to the employees not to display such material. The calendar was permanently removed.
On or about January 25, 1998, Kevin Holloway, a co-worker, asked Ms. Garton whether she had complained about the calendar. She denied that she had complained to Personnel. Sometime thereafter, she asked Mr. Nester whether he had told any of her co-workers that she was offended by the swimsuit calendar or had otherwise complained. He responded that he had not. As Ms. Garton was the only woman on her shift and the only woman in the maintenance shop, she was blamed by her co-workers for the calendar's removal.
On or about January 26, 1998, Ms. Garton found a picture of three women engaged in a sex act with her name on it on a desk next to the phone in the VLS maintenance shop.
She immediately destroyed the picture by ripping it up and throwing it away. Shortly thereafter she told Mr. Nester about the picture and asked to go home. He granted her request and agreed to counsel her co-workers not to jump to conclusions about who may have complained about the calendar as well as to warn them not to mistreat her in any way.
On January 30, 1998, Ms. Garton reported to work and, upon opening her tool box, discovered that someone had slipped into it a picture of a woman with a fake penis that had her name on it. She initially accused Mr. Rowland of being responsible for the picture, but he denied any involvement. Ms. Garton reported the picture incident to Mr. Nester who said that he would do something about it. She asked to go home, and Mr. Nester granted her permission.
Ms. Garton returned to work on February 1, 1998, as scheduled. She worked by herself and was given what she describes as the "silent treatment" all day. Phil Carpenter assigned her jobs where she did not have to have contact with anyone. She had no conversations with anyone. She would say hello, and the men would just stare at her and refuse to return the greeting. After a brief absence, Ms. Garton returned to work on February 9 and 10. The silent treatment continued. Snide comments such as "Are you sure Al won't find that offensive," (Pl. Aff. ¶ 27), were made on the walkie talkies used by the whole department. Ms. Garton was placed on a leave of absence from work on February 11, based on her physician's 1999 diagnosis of "anxiety" and "stress."
On or about April 27, 1998, Ms. Garton filed a Complaint of Discrimination (the "Charge") alleging sexual harassment with the Indiana Civil Rights Commission and the Equal Employment Opportunity Commission ("EEOC"). In the section of the Charge for identifying the basis of the alleged discrimination, an "X" was marked in the box for "sex"; the box for "retaliation" was not marked. (Pl.'s Dep., Def.'s Ex. 15 at 1.) The Charge makes the following allegations:
I. In January 1998 my male coworkers believed that I had complained about a bathing beauty calendar hanging in the work area causing Respondent's management to remove it. I had not complained.
II. My coworkers, believing that I complained about the calendar, began to subject me to a sexually hostile work environment.
III. I believe that I have been discriminated against based on sex because:
A. A hard core porno picture was tapped (sic) on the wall with my name on it.
B. A second hard core porno picture with my name on it was placed in my tool box.
C. My coworkers could not understand why I was so upset by the porno pictures.
D. I have been off work as a result of all this since 2-11-98.
(Id. at 2.) An affidavit attached to the Charge included the following statements:
5. I was subjected to harassment and a hostile workplace based upon my gender and because my male co-workers believed I had complained about pornographic pictures in the workplace and about the presence of computer-generated pornographic images being viewed by my co-workers.
. . . .
9. I was subjected to an extremely hostile workplace in retaliation for my complaints of sexual harassment by my co-workers. . . .
(Id. at 3.) The Charges were dismissed and Ms. Garton received a right to sue letter on May 10, 1999.
On August 6, 1999, Ms. Garton commenced this action upon filing her Complaint against Thomson. The Complaint alleges in an introductory paragraph that "[t]his is an action . . . brought by Plaintiff against Defendant, for discrimination and sexual harassment based upon gender in violation of Title VII of the Civil Rights Act of 1964." (Compl. at 1.)
The Complaint makes the following allegations, inter alia:
12. Garton was subjected to harassment and a hostile workplace based upon her gender.
13. Defendant permitted indecent, offensive, and pornographic magazines, pin-up photographs, and computer graphics to be displayed in the workplace.
14. These pornographic pin-up photographs and computer graphics were displayed and viewed openly by Garton's male co-workers and supervisor.
15. Garton . . . tolerated this environment until the indecent behavior became directed at her, the only female worker in the department.
16. On or about January 25, 1998, Garton's co-workers began to direct their indecent behavior at Garton when they suspected that she had complained to upper management about the pornography in the work area.
17. Garton was subjected to harassment and a hostile workplace because her male co-workers believed she had complained about pornographic pictures in the workplace and about the presence of computer-generated pornographic images being viewed by her co-workers and supervisors.
. . . .
27. Garton was subjected to an extremely hostile workplace in retaliation for her complaints of sexual harassment by her co-workers. . . .
(Compl. at 2-4.)
IV. Analysis
At the outset, the court must determine whether Ms. Garton brings a Title VII sexual discrimination claim under the hostile environment theory, a Title VII retaliation claim, or both. When questioned at oral argument initially, counsel for Ms. Garton asserted that the Charge and Complaint allege both a hostile environment claim and retaliation claim.
Counsel later argued that Ms. Garton was subjected to a hostile environment, the motivation for which after January 25 was in retaliation for her complaints about the swimsuit calendar. Moreover, in her answer brief opposing summary judgment, Ms. Garton clearly argues that this action "should not be barred as a matter of law just because the claim was not, but could have been, also raised as a claim for retaliation." (Pl.'s Answer Br. Opp'n Summ. J. at 10.) Having considered the record, including the Complaint, Ms. Garton's answer brief and the oral arguments of her counsel, the court concludes that though Ms. Garton might have brought a Title VII retaliation claim against Thomson, in this action she has brought a sexual harassment hostile environment claim only.
Even assuming that Ms. Garton had brought a retaliation claim against Thomson, that claim would fail at the summary judgment stage. The Seventh Circuit has recognized that an employer can retaliate against an employee by allowing co-workers to subject her to a hostile environment because she engaged in activity protected under Title VII. See Knox v. State of Ind., 93 F.3d 1327, 1334 (7th Cir. 1996). To prevail on such a retaliation claim, however, Ms. Garton would have to produce some evidence to suggest that Thomson knew of and acquiesced in the co-worker harassment. See id. at 1333-35 (approving in dicta instruction that would hold an employer liable for "retaliation . . . committed by co-workers with the knowledge and acquiescence of the employer"); accord Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 446 (2nd Cir. 1999) (requiring proof of employer's knowledge of retaliatory harassment by co-workers); Gunnell v. Utah Valley State College, 152 F.3d 1253, 1265 (10th Cir. 1998) ("to be liable for a campaign of co-worker harassment, management-level or supervisory personnel must either have orchestrated or have known about and condoned the conduct of [plaintiff's] co- workers"). Ms. Garton has pointed to no evidence which would create a triable issue as to whether Thomson knew and acquiesced in the post-calendar harassment of her. Therefore, any retaliation claim founded upon that harassment would necessarily fail.
Title VII is not a general civility code, see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); Smith v. Sheahan, 189 F.3d 529, 532 (7th Cir. 1999) ("Not all offensive workplace behavior violates the law."), and "is not designed to purge the workplace of vulgarity." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995). To be actionable under Title VII, the harassment must be based on a protected characteristic, such as gender, see Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998); Smith, 189 F.3d at 533; 42 U.S.C. § 2000e-2 (a)(1), and must be "sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment,'" Hostetler v. Quality Dining, Inc., 218 F.3d 798, 806 (7th Cir. 2000) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quotation omitted)).
Whether the harassment is sufficiently severe or pervasive depends on all the circumstances, including "`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.'" Harris v. Forklift Sys., Inc., 510 U.S. 17, 23-24 (1993); see also Faragher, 524 U.S. at 787-88; Hostetler, 218 F.3d at 806-07.
Simple teasing, offhand comments, and isolated incidents, unless extremely serious, do not establish actionable sexual harassment. See, e.g., Faragher, 524 U.S. at 788; Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir. 1998), cert. denied, 120 S.Ct. 450 (1999). The alleged harassment must be both objectively and subjectively offensive. See Hostetler, 218 F.3d at 807. That is, a reasonable person must find the environment hostile or abusive and the plaintiff must actually perceive it as offensive. See Hostetler, 218 F.3d at 807; see also Faragher, 524 U.S. at 787. There is no question that Ms. Garton perceived the work environment as offensive.
Thomson contends that Ms. Garton cannot prove that the alleged harassment was based upon her gender. It also argues that she cannot establish that she was subjected to sufficiently severe or pervasive conduct so as to support a hostile work environment claim.
Finally, Thomson maintains that it took appropriate action to prevent and address the alleged harassment.
In considering Thomson's motion, it is helpful to analyze Ms. Garton's sexual harassment claim in two different time periods: before the calendar incident and after the calendar incident. Ms. Garton has not come forward with any evidence to create a triable issue of fact as to any pre-calendar harassment. It is undisputed that prior to January 1998 and the calendar incident, Ms. Garton had a good experience at Thomson. Indeed, at oral argument, her counsel conceded that the hostile environment began with the calendar incident.
Given this concession, the statements in Ms. Garton's affidavit that are inconsistent with her deposition testimony, all of which concern conduct occurring before January 1998, even if admitted, would be immaterial.
Moreover, even if the statements in Ms. Garton's affidavit about pre-calendar harassment were taken into account, the harassment would as a matter of law be insufficient to establish objectively offensive harassment. The harassment consisted of the following incidents which occurred approximately one year before she complained about the calendar: her co-workers brought a computer disk into work that contained pornographic material which she later heard them discussing; (unspecified) derogatory statements were made about women; copies of Hustler magazine were lying around; a co-worker, John Grey, once told her to "fuck off" and when she confronted him, said that if she couldn't tolerate "being talked to like a man, then get the hell out of the department." (Pl.'s Aff. ¶ 9.) Viewing all of these things together, they were not sufficiently severe or pervasive to create an objectively hostile work environment. Other than the co-worker's comments, there is nothing in Ms. Garton's affidavit to suggest that any of this was directed at her. See Cowan v. Prudential Ins. Co., 141 F.3d 751, 758 (7th Cir. 1998) (recognizing the impact of second-hand harassment is not as great as harassment directed at the plaintiff); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir. 1997) (same). In addition, none of these incidents were physically threatening or intimidating. See Baskerville, 50 F.3d at 430 (noting that on one side of the line lies sexual assaults, other physical contact, uninvited sexual solicitations, and intimidating words or acts).
Ms. Garton also states that "[s]ome men just did not like to work with me because I was a woman." (Pl.'s Aff. ¶ 9.) This statement is entirely conclusory. The only underlying factual basis provided for this conclusion is found in the following sentences discussing John Grey's comments to Ms. Garton. Those comments are addressed above.
As for the post-calendar harassment, though the Complaint alleges Ms. Garton was subjected to a hostile environment because of her gender, it also alleges that the harassment and hostile environment were directed at her because her co-workers believed she had complained about pornographic pictures in the workplace (which the evidence establishes was the swimsuit calendar) and in retaliation for her complaints of sexual harassment. Thus, Ms. Garton's own allegations establish that the harassment was directed at her not because of her gender but because of her complaints about pornographic pictures and sexual harassment, i.e., in retaliation for her complaints. Ms. Garton maintains that there is a factual issue regarding her co-workers' motivation, but she has not come forward with any specific evidence to create a genuine issue regarding the motivation behind the post-calendar harassment, which is her burden in opposing summary judgment. Given the Complaint's allegations that the harassment was directed at Ms. Garton because of the belief she complained about pornographic pictures and the absence of any contrary evidence as to the harassers' motivation, the record fails to support an inference that the post-calendar harassment was motivated by Ms. Garton's gender. Consequently, the post-calendar harassment as a matter of law is insufficient to support an actionable sexual harassment claim.
Ms. Garton seems to argue that her co-workers could not have retaliated against her if they were mistaken in their belief that she complained about the calendar. The court doesn't understand this argument. Certainly, one may be motivated to retaliate against another in error.
That leaves the swimsuit calendar as evidence of sexual harassment. The calendar itself is a non-severe, isolated incident and, therefore, insufficient to establish actionable sexual harassment based on gender. See, e.g., Faragher, 524 U.S. at 788; Adusumilli, 164 F.3d at 361. But even if the calendar and other incidents in January and February 1998 about which Ms. Garton complains were taken into account and viewed as a whole, they were not severe or pervasive enough to create an objectively hostile environment. The silent treatment and comments about whether Ms. Garton would find something offensive were not sexual in nature. See Cowan, 141 F.3d at 758 (in holding that conduct was not sufficiently severe or pervasive, the court noted that the cold shoulder the plaintiff received from co-workers was not sexual in nature); Brill v. Lante Corp., 119 F.3d 1266, 1274 (7th Cir. 1997) (rejecting attempts to buttress sexual harassment claim with incidents that had nothing to do with sex and were not sexual in nature). The swimsuit calendar had sexual overtones and the two pictures were sexually explicit, but these incidents of harassment were isolated and none was physically threatening or intimidating.
Ms. Garton cites to Smith v. Sheahan, 189 F.3d 529, 532-36 (7th Cir. 1999), for the proposition that a jury question was created on the issue of whether a single assault of the plaintiff was sufficiently severe to support an actionable harassment claim. Unlike the Smith plaintiff, Ms. Garton was not physically and verbally assaulted. Smith does not require in all cases a jury determination as to the severity of alleged harassment.
Ms. Garton has not created a genuine issue as to whether the alleged harassment was sufficiently severe or pervasive. Therefore, the court need not address whether Thomson took appropriate remedial measures in response to her complaints, and the motion for summary judgment should be granted.
V. Conclusion
Ms. Garton was subjected to boorish, crass and offensive behavior in the work place by her co-workers, but the conduct of which she complains does not rise to the level of actionable sexual harassment. Accordingly, Thomson's motion to strike is GRANTED
IN PART, and its motion for summary judgment will be GRANTED. Judgment will be entered accordingly.
ALL OF WHICH IS ORDERED this 25th day of October 2000.