Opinion
ip 99-1924-c-m/s
June 21, 2001
ORDER ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant General Motors Corporation's ("GM") Motion for Summary Judgment on Plaintiff Marwayne Kehl's ("Kehl") claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In her complaint, Kehl alleged that GM violated Title VII by retaliating against her and subjecting her to a hostile work environment. Because Kehl withdrew her retaliation claim in her response to GM's motion for summary judgment, the Court DISMISSES that claim with prejudice. Kehl otherwise alleged a litany of acts taken against her that she believes amounted to sexual harassment. The Court will now consider the parties' arguments with respect to that claim.
Because Kehl dropped her retaliation claim, the Court will not consider the facts relevant to that issue. It has instead listed only those facts it has determined are relevant to Kehl's claim for sexual harassment.
A. KEHL'S EMPLOYMENT AT GM
Kehl has been employed as a grinder at the GM Metal Fabricating Division of the Indianapolis Metals Center (the "Plant") since October 14, 1991. Statement of Facts ¶ 1. Before coming to GM, Kehl was employed by Diamond Chain in Indianapolis as a machinist for thirteen years. Id. ¶ 132. Almost immediately after she started work at GM, Kehl knew something was wrong. Id. ¶ 386. Because she had not experienced similar problems during her employment with Diamond Chain, Kehl decided she had just gotten off on the wrong foot and tried to make an effort to get along with her peers and management. Id. ¶ 387. On June 26, 2000, Kehl began training for a machine repair job. Id. ¶ 2; 136. Kehl believed that moving from the machine shop to a machine repair training program was the only way she could escape the harassment she had been subjected to in the machine shop. Id. ¶ 137. Although she transferred to a machine repair classification effective June 26, 2000, Kehl is still performing work as a grinder and is physically located in the machine shop. Id. ¶ 138.
Kehl is the only full-time female employee in the Plant's machine shop, although other women have rotated through the machine shop during apprentice training. Id. ¶¶ 3-4. If she completes the machine repair training, Kehl expects to be transferred out of the machine shop to perform work on the Plant floor. Id. ¶ 139. Since 1997, Kehl has worked a variety of shifts for several different supervisors. Id. ¶ 5.
B. SUPERVISORS AND OTHER PERSONNEL AT GM
LeRoy Morton ("Morton") was a supervisor in the machine shop from April 1992 until January 1999. Id. ¶ 140. Morton was Kehl's direct supervisor whenever they were assigned to the same shift from April 1992 to January 23, 1999. Id. ¶ 142. Specifically, Morton was Kehl's direct supervisor from April 1992 until November 2, 1992; October 25, 1993, until March 28, 1994; May 26, 1997, until August 18, 1997; September 22, 1997, until September 29, 1997; and October through December 1998. Id. ¶ 143.
Eugene Smith is the Superintendent of shops and projects, a position he has held since approximately the fall of 1998. Id. ¶ 144. Smith works first shift. Id. ¶ 145. The machine shop supervisors report to Smith, and he is Kehl's second line supervisor. Id. ¶¶ 146-147.
Since mid-1998, Phyllis Nelson ("Nelson") has been the assistant hourly employment supervisor at the Plant. Id. ¶ 148. From late 1989 to mid-1998, Nelson was the labor relations representative at the Plant. Id. ¶ 149. Since mid-1989, Nelson has been one of the persons responsible for receiving employee complaints concerning sexual harassment and sex discrimination. Id. ¶ 150. Nelson is also one of people at GM responsible for investigating such complaints. Id. ¶ 151. Nelson and other GM employees have conducted sexual harassment and sex discrimination training for both the hourly and salaried employees at the Plant. Id. ¶ 152. For example, in 1995 Nelson and other GM employees presented a 45-minute video-based "Faces of Cooperation" training program to all employees in the Plant. Id. ¶ 153. The program includes a statement about GM's policy with respect to harassment and discrimination. Id. ¶ 157.
All employees at the Plant received the training, but they only received it once. Id. ¶¶ 155-156. This program is the only sexual harassment or sex discrimination program GM offers to its hourly employees. Id. ¶ 158. GM's sexual harassment policy has consistently been included in the national collective bargaining agreement between General Motors and the UAW. Id. ¶ 397.
C. KEHL'S PROBLEMS AT GM
1. Incidents with Co-Worker Harles Dyson
Kehl had problems with co-worker Harles Dyson ("Dyson") since she first came to GM. Id. ¶ 246. Dyson told Morton that he did not want to work with Kehl. According to Morton, Dyson was "adamantly opposed" to being around Kehl or working with her. Id. ¶ 247. Morton never assigned Dyson to work with Kehl. Id. ¶ 248. Early in Kehl's career at GM, Dyson and another co-worker, Frank Collister ("Collister"), gave her bad answers and broke her tools when she went to them for help. Id. ¶ 249. Collister also called Kehl a "stupid cunt" early in her employment at GM. Id. ¶ 250. Sometime during her employment another co-worker, Jim Peyton ("Peyton"), told her that "women didn't belong in the machine shop." Id. ¶ 251. Peyton told Morton that he did not want to work with Kehl because he did not like her and had no professional respect for her. Id. ¶ 252. Morton never assigned Peyton to work with Kehl. Id. ¶ 253.
The parties have also referred to this individual as "Callister." To avoid confusion, the Court has referred to him as "Collister" throughout this opinion.
Kehl apparently had more problems with Dyson. Her workbench was located in an area through which Dyson previously traversed to visit with his co-worker, Joe Kreich ("Kreich"). Id. ¶ 254. Since Kehl's workbench was in Dyson's pathway to Kreich, Dyson had to cut through Kehl's area to get to Kreich's area even though there was very little space and there are more accessible paths available. Id. ¶ 255. The manner in which Dyson went through Kehl's area to get to Kreich's area indicated to Kehl that Dyson felt that she had no business being in his normal pathway. Id. ¶ 256. Dyson also frequently stared at Kehl toward the end of her shift, waiting for her to leave for the night. When this occurred, Kehl frequently found her toolbox in disarray when she arrived to work the next day. Id. ¶ 259.
2. Problems with the Coolant in her Machine
One of Kehl's principal complaints revolves around the use of "coolant," a chemically-based fluid used to cool and lubricate grinding tools. Id. ¶ 6. Kehl experienced respiratory problems when she inhaled coolant fumes. Id. ¶ 7. She believes that when she reported for second-shift work in 1997-98, the coolant levels were too high. Id. ¶ 8. Kehl once saw a co-worker, Jesse Scott, add what she believed to be excessive coolant to a machine without checking it afterwards. Id. ¶ 10; Kehl Dep. at 66. Kehl asked Morton to speak with the co-worker. Id. ¶ 285. After reporting it to Morton, Kehl continued to find excessive amounts of coolant in the grinder machine to which she was assigned. Id. ¶ 286. When she continued to report the problem, Morton shook his head and told Kehl, "I don't know why they [Kehl's co-workers] do these things — I don't know why they [Kehl's co-workers] act this way." Id. ¶ 287.
Morton never inquired of the others in the machine shop whether they had observed anything relevant to the increased coolant levels in Kehl's grinder machine. Id. ¶ 291. On numerous occasions since 1997, the coolant levels in the grinder machines to which Kehl was assigned were excessively high. Id. ¶ 273.
In addition to Morton, Kehl reported the coolant problems to GM management employees Jeff Sapp ("Sapp") and Chris Falloom ("Falloom") on several occasions. Id. ¶ 278. She also reported the excess coolant levels to Nelson on at least two different occasions. Id. ¶ 279. Sapp told Kehl there was nothing he could do if she did not catch anybody adding coolant. Id. ¶ 280. Sapp once yelled at Kehl when she reported the problem, telling her that he could not please her. Id. ¶ 281. Kehl asked Morton to address the problem because the high coolant level was affecting her health. Id. ¶ 282.
At some point after Kehl complained, GM directed Quaker Chemical ("Quaker"), an onsite chemical management company, to regularly monitor and record coolant levels and to adjust them when necessary. Quaker complied with the request. Id. ¶ 11. GM also purchased and made available to machine shop employees, including Kehl, special tools that allowed them to check and adjust coolant levels themselves. Id. ¶ 12. Kehl began checking the coolant levels in the grinder machines. While the level in many machines was fine, she frequently found excessive coolant in the machines to which she was assigned. Id. ¶ 274-275. Kehl's co-workers and managers were aware of her complaints about the coolant levels because the issue was discussed at several safety meetings. Id. ¶ 276. Kehl repeatedly corrected the problem by adding water to the coolant tank to dilute the mixture, assuming there was enough room to do so. If there was not enough room, she had to call a pumper to empty the coolant tank so she could add more water to dilute the mixture. Id. ¶ 288-289. Despite her corrective measures, Kehl continued to experience excessive coolant levels upon reporting to work. Id. ¶ 290.
In addition to problems with coolant levels, Kehl complains that once in August 1997 and once in late 1998 or early 1999 started her grinder and was sprayed with coolant. Id. ¶ 14. She believes that unknown persons intentionally tampered with the coolant hoses which lead from the grinders to the tanks containing the coolant. Id. ¶ 15. GM management had the coolant hoses replaced, but could not determine the cause of the damage to the hoses. Id. ¶ 16. Kehl also alleges that on three occasions between late 1999 and August 2000, unknown persons left coolant hoses improperly placed, again causing her to be sprayed when she started her machine. Id. ¶ 17. In addition to being put in the wrong place, the coolant hose had been left open full blast so that it sprayed when Kehl turned on the grinder machine. Id. ¶ 295.
Kehl was soaked with so much coolant that she had to go to medical, where she showered at the direction of medical personnel. Id. ¶ 296. Kehl reported the incident in which she had been sprayed to GM's medical department; her foreman, Marlin Smith; the safety department; and personnel. Id. ¶ 298. Kehl told her supervisor and personnel that someone on first shift must have been responsible for leaving the coolant hoses turned on and in the wrong position because they were in that position at the start of second shift when she came in to work. Id. ¶ 299.
On a subsequent occasion, Kehl was again sprayed with coolant when she started the grinder machine at the start of her shift. Id. ¶ 300. Kehl was able to jump back quickly and avoid being drenched to the extent she had been on the previous occasion. Id. ¶ 301. After being sprayed the second time, Kehl left the hose running and went to get her foreman, Marlin Smith, to show him how the machine had been left. Id. ¶ 302. Grinder machines at GM have two hoses, one to spray the part that is being ground and one to clean off the table. Id. ¶ 303. The hose that is used to spray off the table is typically only used for that purpose. Id. ¶ 304. On a third occasion, Kehl was sprayed with both hoses when she started the grinder machine. Id. ¶ 305. Kehl reported the third incident to her foreman, Mike Males ("Males"), who told her he would report it to personnel. Id. ¶¶ 306-307.
On other occasions, Kehl had noticed that the hoses had been left so that they would have sprayed her had she not checked the grinder machine thoroughly before starting it. Id. ¶ 309. On at least two occasions in approximately September and October 2000, Kehl reported this situation to Nelson. Id. ¶ 310. On at least two other occasions, holes had been poked in the hose which Kehl used to fill the coolant tank in her grinder with water, causing Kehl to be sprayed with water. Id. ¶ 311. Kehl reported that incident to a die maker foreman and her own foreman. Id. ¶ 312.
GM responded to Kehl's complaints about the hose placement by directing the preceding shift supervisor to ensure proper coolant hose placement at the end of shifts and to place signs at each machine reminding employees to turn coolant off when they finished working. Id. ¶ 18. It is not clear whether Kehl complained to GM about the coolant hoses since the signs went up, but if she did it was on two occasions in approximately September or October 2000. Id. ¶ 19.
Another of Kehl's complaints about the coolant is that in or around November 1997, shortly before she moved from third to second shift, she came to work and found her toolbox "a little soaked . . . a little wet." Id. ¶ 20. On a few other occasions she found "water spots," "streaks," or "puddles" on her toolbox. Id. ¶ 21. Although Kehl reported to management the occasion when her toolbox was "a little wet," management does not recall such a report and it took no specific action. Id. ¶ 22.
4. Problems with Broken Equipment
On a couple of occasions Kehl encountered a cracked or broken grinder wheel, a potentially dangerous situation. Id. ¶ 23. On one occasion in particular, Kehl was hit in the head with pieces of a broken wheel when she began her project. Id. ¶ 361. She believes that male co-workers deliberately left damaged wheels on the machines in the hope of injuring her and that all of the male grinder operators were "desiring to harm" her. Id. ¶ 24. Kehl complained to her foreman, Chris Falloom, that another grinder operator had left a broken wheel on the machine causing her to be struck with a piece of the broken wheel. Id. ¶ 362. Falloom told Kehl there was nothing he could do if she was unable to identify the individual who left the broken wheel on the grinder machine. Id. ¶ 363. GM did assure Kehl, however, that the damaged wheel was replaced and asked the preceding shift to replace parts when necessary and not leave damaged parts for the next shift. Id. ¶ 25.
5. Problems with Brooms and References to Witches
Kehl recalls about thirty occasions between November 1995 and June 2000 when she found brooms (normally two or three) in her work area. Id. ¶ 26. On about four of those occasions several brooms were placed around her chair. Id. ¶ 27. On or around November 1, 1995, several brooms, one of which had a piece of string tied to it like reins, were surrounding Kehl's work area. Id. ¶ 184. Kehl reported this incident to labor relations. Id. ¶ 185. The next day, several brooms were surrounding Kehl's workbench and a cartoon stating "YEAH . . . YOU DON'T HAVE TO WEAR A COSTUME TO BE A WITCH" was placed on Kehl's workbench. Id. ¶ 28, 186. The following day, Kehl met with Nelson in labor relations and reported the problems with the brooms and the witch cartoon. Id. ¶ 187. Nelson did not take any action in response to Kehl's complaint about the cartoon. Id. ¶ 188.
Although Kehl did not complain to GM each time she found a broom, she did raise the issue with management at various times. Id. ¶ 31. For example, on or around November 2, 1998, Kehl reported to Nelson that she was still having a problem with brooms being placed in her work area. Kehl only witnessed one person, Malcolm Capps ("Capps"), leaving a broom in her area. When confronted, Capps maintained that he had been sweeping the area. Id. ¶ 29; Kehl Dep. at 119. Kehl did not report this confrontation to GM management. Id. ¶ 30. Nelson does not recall relaying the concerns that Kehl raised to her to any supervisory employee in the machine shop. On or around November 3, 1998, another cartoon of a witch was placed on Kehl's workbench. Id. ¶ 194. Kehl reported this cartoon to personnel. Id. ¶ 195.
Shortly after Eugene Smith became the superintendent of shops and projects, Kehl complained to him about brooms being left in her work area. Id. ¶ 196. Both Eugene Smith and Nelson understood Kehl's complaints about brooms to be that her co-workers were leaving brooms in her area to insinuate that she was a witch. Id. ¶¶ 197-198. Eugene Smith's initial impression of Kehl's problems in the machine shop was that "maybe there was a bunch of grouchy old men that's tight-knit together, and they were picking on a lady that didn't want no part of that." Id. ¶ 199. In response to her complaint, Eugene Smith told Kehl to allow him 30 days to try and sort out the situation and get it corrected. Id. ¶ 201. Eugene Smith was tired of hearing Kehl's complaints about brooms and would ask her, "Who is that hurting?" Id. ¶¶ 202-203.
Morton and Nelson conducted surveillance of Kehl's work area for a three-to-four-week period, but never observed anyone placing brooms in Kehl's work area. Id. ¶¶ 32-33. With the exception of coming in early and leaving late periodically, Morton did nothing to determine the source of the brooms. Id. ¶ 207. Also, with the exception of walking through the machine shop to check for brooms at the beginning and end of her shift, Nelson did nothing in response to Kehl's 1995 complaint about brooms and witch pictures being left in her area. Id. ¶ 208. Nelson does not recall ever speaking to Capps about the broom incident. Id. ¶ 209. Eugene Smith never questioned any of Kehl's co-workers, other than Capps, about whether they had any information regarding the placement of brooms. Id. ¶ 210.
Later, in response to another of Kehl's complaints, Eugene Smith attempted to identify the source of the brooms by sitting in a strategically-located office and observing Kehl's work area during shift changes. Id. ¶ 34. Eugene Smith also was unsuccessful in determining the source of the brooms. Id. ¶ 35.
Eugene Smith later learned that Kehl had more than one workbench and the brooms were allegedly being left against a workbench other than the one he was observing. Id. ¶ 36. Eugene Smith talked to Kehl about getting rid of some of the workbenches. Id. ¶ 37. He found Kehl to be uncooperative with his bench removal ideas. Id. ¶ 38. Thereafter, he designated a specific location and had a bracket installed for storing brooms when not in use. Id. ¶ 39. The plan apparently did not work, however, because Kehl continued to complain about brooms being placed in her work area. Id. ¶¶ 40-41.
6. Problems with Co-Worker Malcolm Capps
Kehl also had difficulties with a particular co-worker, Malcolm Capps. Kehl worked on the same shift with Capps from December 15, 1997, to April 6, 1998, and again from October 5, 1998, until February 7, 2000. Id. ¶ 42. Capps would follow her in the Plant, sit at telephones in the cafeteria during her breaks and stare at her, and follow her to the restroom. Id. ¶¶ 318-320. Kehl complained to Morton and Nelson about Capps staring at her and following her through the Plant. Id. ¶ 321. Kehl explained to Nelson that she was afraid of Capps. Id. ¶ 322. Capps told Morton that he had not been staring at Kehl and Morton took no further action in response to Kehl's complaint. Id. ¶ 323. Morton did not talk to any other employees or supervisors in the machine shop to determine whether Capps had been staring at Kehl. Id. ¶ 324-325. After Kehl's complaints, Capps wore sunglasses in the Plant and stared at Kehl through the sunglasses. Id. ¶ 326.
Also after Kehl complained, Capps began following her to her car when she left the Plant for lunch. Id. ¶ 329. Kehl got the license plate number of a car that had followed her through several streets in Indianapolis, even running a red light when she did, and learned from the police that the car was registered to Capps. Id. ¶ 330. Kehl reported the incident to her foreman, Bob Pierson, and to Nelson, who told her there was nothing GM could do about Capps following her in his vehicle because the incident occurred outside the Plant. Id. ¶¶ 331-332. After a Marion County court ordered him to stay away from Kehl (apparently in the form of an emergency protective order), Capps continued to come into her work area to visit Dyson. Id. ¶ 333. Kehl requested to trade work space places with Capps so that he and Dyson could speak without Capps coming near Kehl's work area. Id. ¶ 340. Even after Kehl switched places, Capps continued to come into her work area under the pretense of visiting another of his friends, Kreich. Id. ¶ 341.
In January 1999, a vehicle which was driven by another co-worker, David Boys ("Boys"), and in which Capps was a passenger, nearly collided with Kehl's vehicle. Id. ¶ 334. Kehl saw Capps laughing after the near-miss accident. Id. ¶ 336. GM management examined the incident to see if there were grounds to discipline Capps. At Kehl's request, GM talked to Capps about the first driving incident, the serious nature of the emergency protective order, and his responsibility to comply with the terms of the order. Id. ¶ 67. Kehl claims that Capps once intentionally blocked her path, and that on several occasions Capps moved coolant-soaked wooden blocks into her storage area. Id. ¶¶ 43-44. She also alleges that in October 1998, during a confrontation about brooms, Capps called her a "bitch." Id. ¶ 47.
Kehl believed that in November 1998 Capps placed a witch picture and two pictures of bugs containing the phrase "bug out" in her work area. Id. ¶ 48. The picture depicted a witch colliding with a tree and bore the caption: "[t]his witch had an accident." Id. ¶ 49. Kehl reported the bug pictures to her foreman and to personnel. Id. ¶ 224.
Capps frequently placed a cart so that it blocked Kehl's ability to enter and exit her work area. Id. ¶ 343. In late 1998, Capps placed a cart so that it blocked the entry to Kehl's work area, and Kehl moved it to a different location. Id. ¶¶ 50, 344. Capps immediately moved the cart back to Kehl's work area, running over her toe in the process. Id. ¶ 345. Kehl called Capps a "punk" because he ran over her toe with the cart. Id. ¶ 346. Capps replied by calling Kehl a "whore, bitch." Id. ¶¶ 50, 348. Kehl complained about the comment to Morton, Eugene Smith, and Nelson. Id. ¶ 349. Eugene Smith told Kehl that she had too many cabinets in her work area and he was going to get rid of some of them. Id. ¶ 350.
When Kehl tried to redirect Eugene Smith to the comment, he told her "if you don't like the way I'm running things, you can get a job at Wal-Mart." Id. ¶ 351. Morton told her that her calling Capps a "punk" was equivalent to Capps' act of calling her a "whore bitch." Id. ¶ 356. Nelson told Kehl that she should not have called Capps a "punk." Id. ¶ 357.
Kehl additionally complained to management about Capps' alleged staring and following. Id. ¶ 51. When confronted, Capps denied that he had engaged in any such behavior, and there were no corroborating witnesses. Id. ¶ 52. Lacking conclusive evidence that he had transgressed shop rules, GM claims it was powerless to issue any discipline. Id. ¶ 53.
GM management reminded Capps about its anti-harassment policy and warned him that if they caught him engaging in such behavior he would be disciplined. Id. ¶ 54. As a consequence of the October 1998 exchange and the subsequent appearance in Kehl's work area of the witch and bug cartoons, GM management and UAW representatives convened a meeting with Capps. Id. ¶ 55. During the meeting, Capps admitted calling Kehl a "bitch," but maintained it was in response to her saying "fuck you" to him. He also claimed that she had previously called him demeaning names on several occasions. Id. ¶ 56.
Capps also denied placing the cartoons in Kehl's work area. Id. ¶ 57. GM management made it clear that such conduct is not acceptable in a workplace setting and must stop or the transgressor could be severely disciplined. Id. ¶ 58. When Assistant Personnel Director Becky Bolin talked to Kehl on November 5, 1998 — prior to the meeting with Capps — Kehl admitted that she called Capps a "dumb ass" before he called her a "bitch." She also admitted that she told Capps to leave her the "fuck" alone after he called her a bitch. Id. ¶ 59.
Later that year, both Capps and Kehl complained to management, one about the other, regarding the cart placement confrontation involving the "punk" and "whore, bitch" name-calling. Id. ¶ 60. GM understood the term "punk" in the context used by Kehl to mean a homosexual. Id. ¶ 61. GM management again convened a meeting, this time with both individuals, and warned that future incidents would not be tolerated and would result in discipline up to and including discharge. Id. ¶ 62.
On or around May 19, 1999, Kehl complained that Capps had turned off a fan in her work area. Id. ¶ 63. When confronted, Capps admitted turning off the fan but explained that it had been blowing directly in his face while he worked. Id. ¶ 64. In reviewing the situation, GM management concluded that Capps' actions were justified under the circumstances and that no discipline should issue as a consequence of Kehl's complaint. Id. ¶ 65.
7. Problems with Co-Worker Jim Peyton
In the spring of 1997 several employees laughed at her while she was working. Id. ¶ 68. When she responded that they could "come over and do [the work]" one of them, Peyton, replied that she was a "troublemaker" and a "stupid broad." Id. ¶ 69. Kehl then told Peyton that he did not know what trouble was and that he was a liar. Id. ¶ 70. On another occasion when Kehl approached Peyton and some of his friends he said, "Hey, chic." Kehl Dep. at 301-302. Kehl understood "chic" to mean "a woman — a cutesy." At another unknown time Peyton told her that women did not belong in the machine shop. Id. ¶ 71. Peyton complained to management in the summer of 1997 that Kehl had thrown a screw at him, refused to talk to him in an adult manner, and told him "if you're looking for trouble, I'll give you all the trouble you can handle." Kehl told a different story. Id. ¶ 72. Management reacted to Kehl's and Peyton's complaints by telling both of them that they must stop the conflict and begin behaving in a businesslike manner in the workplace and that they should take problems to their supervisor, rather than becoming involved in conflict. Id. ¶ 73.
8. Miscellaneous Problems
In October 1997 Boys blew metal shavings onto Kehl from the machine on which he was working. Id. ¶ 74. After investigating the incident, GM ensured that shields were installed on the machine in question to help contain the shavings. Id. ¶ 75.
In December 1997, Kreich swung a large part that he was moving with a hoist to within six inches of Kehl, who believes he was either trying to scare or hurt her. Id. ¶¶ 237-238. Kehl did not report the incident to GM, but instead complained to her UAW committeeman. Id. ¶ 76. The next day someone taped a child's bicycle horn to the hoist and placed it within three or four feet of her work area. It remained until Kehl removed it a couple of days later. Id. ¶¶ 77, 240. This embarrassed Kehl because she interpreted it as a joke about her complaint about Kreich's swinging a part too close to her. Id. ¶ 241.
On August 11, 1997, when Kehl was off work on bereavement leave after the death of her father, someone placed an advertisement regarding "feminine infections" under the plexiglass on her workbench. Id. ¶ 78, 213. The advertisement featured a cartoon female figure wearing a shirt that said "Research STUDENT BODY." Id. ¶ 79. Kehl reported the incident to Morton and personnel. Id. ¶ 215. In response to Kehl's complaint, GM management issued a memorandum to the machine shop shift supervisors directing them to meet with each of their subordinates and cautioned them against any behavior contrary to company policy. Id. ¶ 80. GM and UAW representatives jointly held a meeting of machine shop employees on Kehl's shift, distributed a copy of GM's harassment policy, and cautioned the group about inappropriate workplace behavior. Id. ¶ 81. Kehl was not at this meeting because she had a pre-planned vacation day. Id. ¶ 82.
Sometime after November 1997, Kehl opened a tool drawer to retrieve the coolant-checking tool and discovered a book that had been opened to a page containing a pornographic picture. Id. ¶ 83. After she saw the picture, Kehl "shut the door real fast." Id. ¶ 395. Kehl told Morton about the inappropriate pictures and asked him to look into the drawer. Id. ¶ 316. According to Kehl, management responded by supplying her with her own instrument so she would not have to retrieve a tool from the shared drawer. Id. ¶ 84. Kehl's supervisor does not recall her complaining about a pornographic picture. He does, however, recall supplying her with her own coolant-checking tool because she complained that the shared tool was not where it was supposed to be. Id. ¶ 85.
In late 1997 or early 1998, Kehl advised a maintenance supervisor that a bathroom receptacle for feminine napkins needed to be filled. Id. ¶ 86. Later, the supervisor placed a stack of the napkins on Kehl's workbench. Id. ¶ 87. Kehl did not believe that the supervisor acted out of any sort of animus; instead, she thought he was "just trying to be nice." Id. ¶ 88. Two to four weeks later, someone placed another stack of feminine napkins on her workbench even though the maintenance supervisor with whom she had previously dealt no longer worked at the Plant. Id. ¶ 89. Kehl thinks she may have complained to Morton about the feminine napkins. Id. ¶ 90. Morton, however, does not recall talking to Kehl about the problem. Id. ¶ 91.
Kehl also complains that since June 2000, trash such as "filthy gloves and pieces of screws and pieces of metal" were left on her workbench. Id. ¶ 92, 225. Kehl complained to Nelson about the situation on five to ten separate occasions. Id. ¶ 226. Upon observing the materials, Kehl's supervisors concluded that workers on the previous shift simply were not cleaning up after themselves. Id. ¶ 93. They spoke to the previous shift supervisors and asked for improved housekeeping. Id. ¶ 94. In late December 2000, someone placed approximately thirty or more cigarette butts on Kehl's workbench. Id. ¶ 388.
On one occasion — maybe in 1997 — Kehl found a bag of donuts with maggots on them in her work area. Id. ¶ 95. In May 1997, Kehl found what she believed to be a pubic hair on a white napkin under the plexiglass on her workbench. Id. ¶ 97. Kehl admits that she never brought the alleged pubic hair to management's attention. Id. ¶ 98.
Sometime prior to June 26, 2000, Kehl left her personal key ring unattended in her work area. Id. ¶ 99. When she returned, she discovered that her car ignition key had been "ground down." Id. ¶ 100.
Kehl's supervisor talked to two employees who worked near Kehl to see if they knew anything, but he was unable to identify the culprit. Id. ¶ 101. Kehl reported the incident to Males, Pinkerton guards, and to people in personnel/labor relations at the Plant, including Nelson. Id. ¶ 265. Nelson told Kehl that it was difficult for her to do anything if she did not know exactly who was responsible for grinding her key. Id. ¶ 267. Nelson took Kehl's key and showed it to her superior, Personnel Director Dave Sweeney. Id. ¶ 268. Nelson returned the key to Kehl a week later, but never followed up with Kehl regarding the incident. Id. ¶ 269. Nelson did not speak to Kehl's supervisor or to any of her co-workers regarding the incident. Id. ¶¶ 271-272.
Sometime between June 26 and August 11, 2000, someone cut the radiator hose on Kehl's car while it was parked in a lot in front of the UAW hall. Id. ¶¶ 102-103. Kehl did not witness the incident and does not know who caused the damage. Id. ¶ 104. She reported the incident to Males, the union, and Pinkerton security guards. Id. ¶ 263. Nelson took no action to investigate the complaint. Id. ¶ 264.
Over the last three years, someone glued Kehl's toolbox lock so that it had to be cut off. Id. ¶ 105. The lock on her toolbox was filled with glue four or five times. Id. ¶ 228. Eugene Smith, who did not come into the department until late 1998, knew that someone had put glue in Kehl's lock. Id. ¶ 229.
Eugene Smith took no action to investigate the allegation. Id. ¶ 230. Kehl also believed that another co-worker, Joe Kreich, gradually, but deliberately, moved her toolbox from its proper location. Id. at ¶ 105, 232. This made it difficult for her to get in and out of her work area. Id. at ¶ 231. Between June and August 2000, Kehl reported the workbench movement to her foreman, Males, on approximately ten different occasions. Id. at ¶ 233. Males assured Kehl that he would speak with his boss, Eugene Smith, and with Personnel. Id. at ¶ 234. Eventually, Males told Kehl that he had spoken with Eugene Smith, who told him that Kreich was moving her workbench because he wanted to be closer to the area in which her workbench was placed. Id. at ¶ 235. Kehl told Morton that she felt someone was moving her toolbox to harass her. Id. at ¶ 236. Someone also once covered Kehl's toolbox in Blue Dykum, a dye used to mark parts. Kehl believes this was done as a prank. Id. ¶ 262.
Kehl appears to be alleging both that someone moved her tool box and her workbench. It is not clear to the Court whether her tool box is part of her workbench. Because the parties have not otherwise explained the discrepancy, the Court will assume that when Kehl complains of her toolbox being moved she also is referring to her workbench.
9. GM's Responses to Kehl's Complaints
Morton spoke with Sapp, Falloom, and Dan Hall about Kehl's complaints. Id. ¶ 364. GM never issued any discipline to anyone as a result of any of Kehl's complaints. Id. ¶ 367. Nelson periodically called Eugene Smith to advise him on Kehl's most recent complaints, but did not give him any direction as to what he should do in response to the complaints. Id. ¶¶ 371-372. None of the personnel representatives with whom Eugene Smith spoke regarding Kehl's complaints gave him any direction on what to do in response to her complaints. Id. ¶ 373. With the exception of one group meeting of the first and second shift grinder operators, and two meetings with Capps, Eugene Smith never spoke with any hourly employees of the machine shop regarding Kehl's complaints. Id. ¶ 370.
On or around November 3, 1995, Kehl filed a charge of sex discrimination/sexual harassment against GM with the City of Indianapolis Division of Equal Opportunity. Id. ¶ 381. After speaking with Nelson and receiving assurances that GM would stop the harassing behavior, Kehl voluntarily withdrew her complaint. Id. ¶ 382. Kehl then filed charges with the Equal Employment Opportunity Commission in December 1997 and February 1999. Id. ¶ 384.
II. STANDARDS
A. SUMMARY JUDGMENT STANDARDS
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990), cert. denied, 111 S.Ct. 1317 (1991). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought shall be rendered forthwith 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, a court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to his case, one on which he would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
B. TITLE VII STANDARDS
Title VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. An employer may be liable for discrimination within the meaning of Title VII if an employee is subject to a hostile work environment based on her sex.
To recover, an employee must show that: 1) she was subject to unwelcome harassment; 2) the harassment was based on her sex; 3) the harassment was severe and pervasive so as to alter the conditions of the employee's environment and create a hostile or abusive working environment; and 4) there is a basis for employer liability. Mason v. Southern Illinois University at Carbondale, 233 F.3d 1036, 1042 (7th Cir. 2000). While employers are vicariously liable for hostile environment sexual harassment by supervisors (subject to certain defenses), Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998), a plaintiff must show negligence in order to hold an employer liable for co-worker harassment. Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).
Title VII is not, however, a general civility code. Faragher, 524 U.S. at 788. Nor is it "designed to purge the workplace of vulgarity." Baskerville v. Culligan Int'l. Corp., 50 F.3d 428, 430 (7th Cir. 1995). To be actionable under Title VII, the harassment must be based upon a protected characteristic, such as gender, see Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998), 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). Accord, Faragher, 524 U.S. at 786.
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).
Simple teasing, offhand comments, and isolated incidents — unless extremely serious — do not establish actionable sexual harassment. Faragher, 524 U.S. at 788. The alleged harassment must be both objectively and subjectively offensive. That is, a reasonable person must find the environment hostile or abusive and the plaintiff must actually perceive it as offensive. Gentry v. Export Packaging Co., 238 F.3d 842, 850 (7th Cir. 2001). Relatively isolated instances of nonsevere misconduct will not support a claim of hostile work environment." Silk v. City of Chicago, 176 F.3d 390, 398 (7th Cir. 1999); Filipovic v. KR Express Systems, Inc., 176 F.3d 390, 398 (7th Cir. 1999).
III. DISCUSSION
The parties do not dispute the material facts in this matter. For its part, GM concedes for purposes of this motion that Kehl was exposed to several acts that she believes amounted to sexual harassment. Its position, however, is that Kehl has produced no evidence indicating that the majority of those acts were based upon her sex. As a result, GM contends that the Court cannot consider many of the non-sexual acts of alleged harassment in its hostile work environment analysis. Even if Kehl establishes a hostile work environment, continues GM, it cannot be held liable because it took appropriate remedial measures.
Kehl views GM's argument as an attempt to improperly "parse" out the non-sexual acts of harassment. Kehl believes that GM is inviting the Court to view all of her allegations in isolation, instead of looking at the totality of the circumstances in determining whether a hostile environment existed. Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 668 (7th Cir. 2001) (court must look at the totality of the circumstances in determining whether environment is sufficiently hostile or abusive). The Seventh Circuit has explained that in analyzing the totality of circumstances, courts should not "carve up the incidents of harassment and then separately analyze each incident, by itself, to see if each rises to the level of being severe or pervasive." Mason, 233 F.3d at 1044.
As the parties concede, to create a hostile work environment the alleged acts of harassment need not be overtly or explicitly sexual in nature, so long as they were based upon the victim's sex. See Hardin v. S.C. Johnson Son, Inc., 167 F.3d 340, 345 (7th Cir.), cert. denied, 528 U.S. 874 (1999). See also, Bowman v. Shawnee State University, 220 F.3d 456, 463 (6th Cir. 2000) ("Non-sexual conduct may be illegally sex-based and properly considered in a hostile environment analysis where it can be shown that but for the employee's sex, he would not have been the object of harassment."). Where the acts are not overtly or explicitly sexual, however, Kehl must present sufficient evidence to create an inference that they were taken because of her sex. This is because, as the Supreme Court has explained, "Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at `discrimination because of sex.'" Oncale, 523 U.S. at 80. "The critical issue, as Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. The Court further explained how a plaintiff might create an inference that the alleged conduct was based upon sex:
Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted `discrimina[tion] . . . because of . . . sex.'
Judge Thomas' concurrence in Oncale emphasized that for harassment to be actionable it must be based upon sex: "I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination `because of . . . sex.'" 523 U.S. at 82.
The Court agrees with Kehl that it cannot isolate the sexual acts from the non-sexual acts, but instead must look at the totality of the circumstances. As already discussed, however, before the Court can include the non-sexual acts in the analysis, it must first determine that there is at least an inference that those acts were based upon Kehl's sex. In so doing, the Court must consider whether Kehl has presented evidence from which a reasonable jury could conclude that her gender provided the motivation for the numerous acts. That task is easy for certain sex-or-gender-related conduct, including the following: (1) the incidents with the brooms and references to Kehl's being a witch; (2) the time someone left an advertisement for feminine infections under the plexiglass on her bench; (3) the time that someone left a stack of feminine protection napkins on her workbench; (4) the one incident where co-employees referred to her as a "stupid broad;" (5) the incident where one co-worker said women don't belong in the machine shop and another called her a "stupid cunt;" and (6) the one occasion when she approached co-worker Peyton and he said "Hey, chic."
The more difficult question then becomes whether Kehl has presented sufficient evidence to create an inference that her gender provided the impetus for the remaining non-sexual "pranks" and acts of sabotage. At some point after beginning her employment with GM, one of Kehl's male co-workers told her that women did not belong in the machine shop. Over the next several years, Kehl — the only female in the shop — was the subject of numerous pranks and acts of sabotage. Although Kehl has not identified the perpetrators of these acts, it is significant that they occurred during the same general time frame and were interspersed with the admittedly sexual acts. It also is significant that there is no evidence that the other males in the shop suffered from similar treatment. In Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999), the plaintiff submitted affidavits from several female co-workers documenting the alleged harasser's recurrent hostile behavior toward them. The Court noted that "[t]hese incidents are unmatched by similar reports of verbally and physically aggressive behavior toward male co-workers. This evidence would permit a trier of fact to draw the inference that [the harasser] chooses to harass women but not men." Id.
Similarly, there is no evidence in this case that other males in the shop suffered from harassment or acts of sabotage to their workplaces and equipment. A reasonable jury, therefore, could draw the inference that the non-sexual pranks and other acts — including Kehl's frequent altercations with Capps — were charged with anti-female animus and were taken because of Kehl's sex. As a result, the Court will consider them in its hostile work environment analysis.
A hostile environment is one where the conduct is sufficiently or pervasive such that a reasonable person would find it hostile and that the victim herself subjectively sees as abusive. Murray v. Chicago Transit Authority, 2001 WL 493433, *6 (7th Cir. May 10, 2001); Wolf v. Northwest Indiana Symphony Society, 2001 WL 533798 (7th Cir. May 21, 2001). 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, 510 U.S. at 23-24.
Moreover, "the concept of sexual harassment is designed to protect working women [and also men] from the kind of . . . attentions that can make the workplace hellish . . . It is not designed to purge the workplace of vulgarity." Wolf, 2001 WL 533798, citing Baskerville, 50 F.3d at 430. While there is no bright line distinguishing "the merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other," see Baskerville, 50 F.3d at 430-431, the Court finds that Kehl's allegations of continuous — spread over a period of years — are sufficient to at least create a jury question over whether she suffered a hostile work environment that altered the terms of her employment.
Finally, the Court finds that there is a material question of fact about whether GM's remedial action was sufficient. Because there is no evidence that any supervisors harassed Kehl, GM would only be liable if it failed to take appropriate remedial measures once apprised of the harassment. Hostetler, 218 F.3d at 809. Although GM argues that it properly investigated Kehl's complaints, on this record a reasonable jury could conclude otherwise. Indeed, Kehl has been complaining to GM since 1995, when she began having problems with the brooms in her work area. When she complained to Eugene Smith, the Superintendent of shops and projects, about the brooms he asked her, "Who's hurting with brooms? Who's that hurting? . . . That's a broom, you know." Stmt. of Facts ¶ 202. Kehl told Eugene Smith that when the brooms had notes attached, she believed that amounted to calling her a witch. Eugene Smith, however, was admittedly "sick" of hearing about brooms. Id. ¶ 203. In addition, Eugene Smith's initial impression of Kehl's problems in the shop was that "maybe there was a bunch of grouchy old men that's tight-knit together, and they were picking on a lady that didn't want no part of that." Id. ¶ 199. When Kehl complained to Nelson about the witch cartoon, Nelson did not investigate — apparently because Kehl had not produced the cartoon. Id. ¶ 188. When Kehl complained to GM foreman Jeff Sapp about the coolant problems, he yelled at her and told her that he could not please her. Id. ¶ 281. When Kehl complained to her foreman and Nelson about Capps' calling her a "whore bitch," Morton told her that her calling Capps a "punk" was equivalent to Capps' act of calling her a "whore bitch." Id. ¶ 356. Nelson told Kehl that she should not have called Capps a "punk." Id. ¶ 357. In light Kehl's repeated complaints to GM, and the fact that the harassment never ceased, a reasonable jury could conclude that these responses from GM management simply were insufficient to protect the company from liability.
IV. CONCLUSION
Because Kehl has presented sufficient evidence to get to a jury on her hostile work environment claim. There are questions of material fact about whether the harassment Kehl suffered was based upon her sex, whether the harassment amounted to a hostile work environment, and whether GM took appropriate remedial action. As a result, the Court DENIES GM's motion for summary judgment on Kehl's hostile environment claim. Kehl has abandoned her retaliation claim. Accordingly, the Court GRANTS GM's motion for summary judgment on that claim.
IT IS SO ORDERED.