Court Cases Court Cases
AL  AK  AZ  AR  CA  CO  CT  DE  FL  GA  HI  ID  IL  IN  IA  KS  KY  LA  ME  MD  MA  MI  MN  MS  MO  MT  NE  NV 
NH  NJ  NM  NY  NC  ND  OH  OK  OR  PA  RI  SC  SD  TN  TX  UT  VT  VA  WA  WV  WI  WY  EO  NR  PR  DC  US 
 
View Case Details
 
SUSAN ALBERTS Plaintiff
vs.
WICKES LUMBER COMPANY and JIM CREW Defendants.
 
Case:
No. 93 C 4397
 
Location:
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
 
Date:
February 5 1996 DOCKETED
 
Attorneys:
For SUSAN ALBERTS plaintiff: Janice M. Rauen [COR] Banta Cox & Hennessy Chicago IL. Vicki Lafer Abrahamson [COR LD NTC A] Carrie J. Lausen [COR] Abrahamson & Vorachek Chicago IL.
For WICKES LUMBER COMPANY defendant: Earle S. Rappaport Jr. [COR] Schwartz Cooper Greenberg & Krauss Chicago IL. Timothy W Johnson [COR LD NTC A] Crenshaw & Johnson Atlanta GA. Franklin S. Schwerin [COR LD NTC A] Schwartz Cooper Greenberger & Krauss Chartered Chicago IL. For JIM CREW defendant: Allen William Dub [COR LD NTC A] Rock Fusco Reynolds Crowe & Garvey Ltd. Chicago IL.
For JIM CREW counter-claimant: Allen William Dub [COR LD NTC A] Rock Fusco Reynolds Crowe & Garvey Ltd. Chicago IL.
For SUSAN ALBERTS counter-defendant: Janice M. Rauen [COR] Banta Cox & Hennessy Chicago IL. Vicki Lafer Abrahamson [COR LD NTC A] Carrie J. Lausen [COR] Abrahamson & Vorachek Chicago IL.
 
Court:
RONALD A. GUZMAN United States Magistrate Judge. HONORABLE PAUL E. PLUNKETT JUDGE UNITED STATES DISTRICT COURT
 
Author:
The Hon. Justice Ronald A. Guzman
 

Pending is defendant Wickes Lumber Company's ("Wickes") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant moves for summary judgment on Counts I II III IV V and VI of plaintiff's Susan Alberts' ("Alberts") First Amended Complaint. Specifically Count I alleges sexual harassment constructive discharge Count II - sex discrimination/failure to promote/constructive discharge Count III - retaliation Count IV - discrimination in pay in violation of Title VII Count V - violation of the Equal Pay Act and Count VI -violation of the Equal Pay Act based on willfulness.

BACKGROUND FACTS

Plaintiff Alberts began her employment with Wickes on September 6 1988 as an Employee Relations Specialist. *fn1 Alberts began working in the human resources field in 1982. *fn2 From 1986 to 1988 she worked as a Branch Personnel Administrator for Kidder Peabody. *fn3 Her duties consisted of office management sales assistant recruitment relocations maintaining personnel files handling employee relations issues benefits administration and ensuring SEC compliance. *fn4 Additionally Alberts supervised exempt level employees and received formal personnel training at both of her previous jobs. *fn5

Alberts has a bachelor's degree in Industrial/Organizational Psychology. *fn6 She has attended seminars on employment law the Americans with Disabilities Act and unemployment compensation. *fn7 In addition she has attended a Control Data Institute conference on Repertory HRIS software Lotus and employment law. *fn8 Alberts is certified as a compensation professional. *fn9 To obtain certification she attended six to seven courses administered by the American Compensation Association covering topics such as wage and hour laws the Fair Labor Standards Act job structures job ranking job evaluation slotting jobs setting pay structures salary surveys marketing and internal data internal equity external equity and regression analysis. *fn10 Plaintiff received her certification in June 1991. *fn11

As an Employee Relations Specialist Alberts was primarily responsible for recruiting non-exempt corporate employees and administering company personnel policies and procedures. *fn12 Additionally she researched personnel policies learned how to interpret them and assisted office managers with interpreting and applying such policies. *fn13 Alberts conducted attitude surveys where she interviewed employees on human resource issues summarized her findings and made recommendations to zone managers with courses of action to be taken. *fn14 Throughout her employment at Wickes Alberts had day-to-day responsibility for all employee relations issues for the entire company including all regions and the home office. *fn15

In August 1989 Peter Stein ("Stein") left the company. *fn16 Before leaving he trained Alberts to perform his responsibilities as Management Recruiter. *fn17 The training included the technique for sourcing and interviewing management candidates compensation issues advertisements and the personality types and issues encountered with zone managers. *fn18 Thus Alberts was required to work directly with zone managers. *fn19 She assumed all of his responsibilities in addition to her existing responsibilities for employee relations and compensation. *fn20

In the Fall of 1990 Tim White ("White") left the company. *fn21 He was the Manager of Compensation. *fn22 Plaintiff assumed his duties and became responsible for assisting William Stark ("Stark") her supervisor in the administration of compensation programs that were used in the stores and the corporate office. *fn23.Alberts conducted salary surveys assisted in the development of salary ranges and summarized the information for merit raise reviews. *fn24 She also worked on exempt salary schedules center manager and zone manager bonus plans home office bonus plans commission plans market analysis of jobs position evaluation point factor analysis and regression analysis. *fn25

From the day Alberts was hired she supervised one employee her secretary. *fn26 However in approximately August 1990 she assumed the supervision of a number of clerical people in the Human Resources Department. *fn27 Also in August 1990 Alberts became responsible for maintaining the Human Resources Information System ("HRIS") computer system. *fn28 The computer system contains detailed personnel records including compensation benefits job history data performance appraisal data and other similar information. *fn29 Alberts was responsible for maintaining and analyzing the data integrity of the information regarding employee personnel histories and compensation. *fn30

Alberts' starting salary at Wickes was $30 000. *fn31 She received a raise in April 1989 to $31 200. *fn32 In April 1990 she received another raise to $33 000 after receiving a more than satisfactory performance evaluation in March 1990. *fn33 Alberts contends this raise was minimal considering she assumed more management recruitment responsibilities. *fn34 She requested Stark her supervisor to reanalyze her position. *fn35 Thereafter she was promoted to Senior Employee Relations Specialist Grade Level 4. *fn36 Alberts was in the lower one-third of the salary range for Grade 4 employees ($31 700-$36 999). *fn37 In June 1990 she received a merit increase of $2 500 bringing her up to $35 700. *fn38

In April 1991 Alberts was performing the duties of Senior Employee Relations Specialist Management Recruitment and Manager of Compensation requiring her to work 45-50 hours per week. *fn39 In the same month Alberts received a more than satisfactory performance review and a merit increase of $1 800 raising her salary to $37 000. *fn40 She remained in the lower one-third of the salary range for Grade 4 employees according to Wickes Exempt Level Salary Structure dated April 4 1991. *fn41 Accordingly Alberts prepared a compensation analysis of her position and requested Stark to reevaluate her salary. *fn42 She believed she was being paid below the market for the duties she was performing and being paid less than male employees performing the same duties. *fn43 Stark granted Alberts' request and she received a raise of $2 500 raising her overall salary to $40 000. *fn44

In the Fall 1992 Alberts' title was changed to Manager of Corporate Recruitment and Compensation. *fn45 Maggie Watson ("Watson") suggested the title change because it was more indicative of Alberts' responsibilities. *fn46 Watson was Vice President for the Riverside Group who was generally overseeing the Human Resources Department at Wickes. *fn47 Alberts did not receive a compensation or job grade increase with the title change. *fn48 However in October 1992 she did receive a merit increase raising her salary to $42 000. *fn49

Jim Crew ("Crew") was a zone manager at Wickes. *fn50 Zone managers are responsible for evaluating the performance of the store managers in their zones. *fn51 Additionally they can make recommendations to terminate managers. *fn52 However such recommendations are subject to approval by the zone manager's supervisor. *fn53

Alberts worked with Crew on a number of personnel matters. *fn54 She had work-related contact with him two to three times per month. *fn55 However prior to June 1992 Alberts did not have any contact with Crew outside work. *fn56

At the office and in Alberts' presence Crew often made comments on how great he was with women and about his sexual prowess. *fn57 For example when Alberts was engaged in a business conversation with a female clerk Crew walked up and stated You two ladies must be talking about me. I'm a great subject. *fn58 In another instance during a business conversation with Alberts Crew repeated the word "anything" several times in a sexually suggestive manner and told Alberts not to use the word "anything" around him. *fn59

Alberts and Stark sometimes presented a sexual harassment seminar. *fn60 Stark put it together for Wickes employees and it was presented at various locations between May 1992 and December 1992. *fn61 On occasion Alberts would present it alone. *fn62 One of these occasions was in June 1992 in Dubuque Iowa. *fn63

The Dubuque meeting was scheduled by Crew. *fn64 According to Alberts Crew called her and told her he wanted her to present the seminar on sexual harassment and Americans with Disabilities Act to the managers from his zone because she would be more fun then Stark. *fn65 Additionally he told her they were planning a riverboat gambling cruise for the evening before the presentation and a golf outing after the meeting. *fn66

Alberts also states that Crew called her a second and third time prior to the Dubuque meeting. *fn67 Alberts informed Crew that she made her own hotel reservation. *fn68 In response Crew told her that he had reserved a room for her right next to his near the pool. *fn69 Later he told her the hotel was out of rooms so she would have to stay in his room. *fn70 She told Crew that she would not stay in his room. *fn71 Alberts also informed Stark that Crew had told her that she would have to stay in Crew's hotel room. *fn72

On June 16 1992 Alberts drove to Dubuque. *fn73 After checking in she met the group in the lobby to board a shuttle bus that took them to the riverboat gambling cruise. *fn74 Crew designated Alberts to hold a cup of coins the managers pooled together for the slot machines. *fn75 Crew Alberts and Tom Ward ("Ward") the manager of the Beloit Wisconsin store all stood at the slot machine together and pulled the handle at the same time. *fn76 At this time Crew rubbed against Alberts who tried to move away from him. *fn77 In addition he asked her if she wanted to go skinny-dipping with him. *fn78

On the boat Alberts had dinner with Crew and Ward. *fn79 She consumed approximately three glasses of beer. *fn80 After the cruise the group returned to Crew's room where several of them played poker. *fn81 Alberts did not play poker and left the room after five minutes. *fn82 She returned to her room changed and went to sleep. *fn83

Alberts was awakened by a knock on her door at approximately 2:00 a.m. *fn84 She asked who it was and Crew identified himself. *fn85 He told her to open the door and let him in. *fn86 Alberts opened the door thinking it might be an emergency or something concerning the meeting. *fn87 Crew then pushed her onto the bed got on top of her and began kissing her and grinding her with his genitals. *fn88

Alberts contends that Crew pinned her to the bed put his hand in her sweat pants pulled down her underpants and put his fingers into her vagina. *fn89 Alberts told him "No. No. No. I have no birth control." *fn90 Crew stated that no one knew he had come to her room and that he knew she was separated from her husband. *fn91 Alberts told him that she had no interest in having a relationship with him and she had heard things about other women he had been involved with at Wickes. *fn92

Alberts further contends that Crew then pulled down his shorts and moved his body up while remaining on top of her. *fn93 He exposed his penis and put it at her lips and told her to "suck on this." *fn94 Alberts told Crew to get off of her and leave her room. *fn95 She also told him that he was drunk because of his behavior and the smell of alcohol on his breath. *fn96 Crew was in her room for approximately ten minutes. *fn97

After Crew left Alberts composed herself and eventually went back to sleep. *fn98 She awoke the next morning and arrived at the conference room at 7:30 a.m. *fn99 Crew entered the conference room and told her that she would give her presentation at noon. *fn100 He then began speaking spoke for a few minutes and then contrary to what he told Alberts introduced her to give the presentation. *fn101 She gave her presentation. *fn102 Consequently after the presentation she approached Crew and told him not to ever come to her room and not to ever do anything like that again. *fn103 Crew simply snorted at her comment and acted arrogant and nonchalant. *fn104

Alberts asserts she did not call the police after Crew left her room because she felt extremely degraded embarrassed and humiliated. *fn105 She believed it would destroy her career if she called the police to arrest a Wickes Zone Manager who was the person in charge of the business meeting. *fn106

Although Alberts did not play golf Crew and the other managers encouraged her to attend the golf outing. *fn107 She believed it was expected of her to attend the outing and if she did not Crew might hurt her career. *fn108

On the golf course Alberts rode in the beer cart with Joe Hill a manager from Jackson Wisconsin. *fn109 Alberts drank approximately four beers in four hours. *fn110 Crew came up to the cart periodically to get a beer and rubbed his leg against Alberts' on two occasions. *fn111

At the golf outing Alberts and Steve Cecil ("Cecil") the manager of the Davenport store arranged to have dinner. *fn112 Cecil met Alberts at Chi Chi's restaurant after the outing. *fn113 Crew arrived thereafter although Alberts was unaware that he was going to be there. *fn114 During dinner Alberts and Crew argued and did not get along. *fn115 Alberts did not drink during dinner but drank two shots of tequila after dinner. *fn116 She then returned to the hotel to retrieve her luggage and drove back home. *fn117

Thereafter in July or August 1992 Crew asked Alberts to go on a date with him. *fn118 He asked her while they were at a bar after work. *fn119 He asked her again in approximately September 1992 after Wickes administered psychological tests to its managers and Crew told Alberts that if she would tell him the results of his test he would take her out to dinner. *fn120

On July 2 1992 several Wickes employees were at a different bar playing pool. *fn121 While Alberts bent over to take a shot at the pool table Crew took a pool cue and ran it up and down the inside of her thigh. *fn122 Alberts turned around and gave him a dirty look. *fn123

On August 7 1992 Alberts and several Wickes employees were at another bar. *fn124 Alberts left with Wade Baldwin. *fn125 When she arrived home Gloria Dryjanski a coworker and friend called her and told her that she and her husband were going to come over to Alberts' house. *fn126 When they arrived Crew was with them. *fn127.Alberts was both surprised and upset to see him at her home. *fn128 Gloria Dryjanski urged Alberts to show Crew her house. *fn129 Uncomfortable Alberts did so and she and Crew discussed her car and its stereo. *fn130 They went to the garage to see her car and sat in it. *fn131 In the car Crew tried to kiss Alberts. *fn132 Alberts told him she was not interested in a relationship with him and she was not interested in him. *fn133 Out of the car but still inside the garage Crew tried to kiss her again. *fn134 Alberts told him no. *fn135

When they returned from the garage the Dryjanski's Baldwin and Crew played cards. *fn136 Later Alberts and Crew exchanged words about the situations that occurred between them. *fn137 They became upset with each other and Crew grabbed Alberts' arm and twisted it. *fn138 More words were exchanged and Crew again grabbed Alberts' arm. *fn139 When he released it Alberts left to sit in the living room. *fn140 Crew came into the room picked up a couch pillow and threw it across the room at Alberts. *fn141

In addition on a number of occasions prior to November 1992 Crew made attempts to get physically close to Alberts while at work. *fn142 For instance when he would come into her office he sat on her credenza just inches away from her chair rather than sitting in a chair across her desk. *fn143 He approached her in the halls and at the water fountain while she was speaking to other employees and stood right next to her. *fn144 Crew also attempted to share a doorway with Alberts when it was apparent that there was not room for two people. *fn145

Within weeks of the Dubuque Incident in June 1992 Alberts told Stark that Crew had "done something" to her in Dubuque. *fn146 Stark was her supervisor and the Director of Human Resources. *fn147 He replied that Alberts was a strong person and when she was ready to tell him about it she would. *fn148 Between June and November Alberts reiterated to Stark on several occasions that Crew had done something to her in Dubuque. *fn149

The week following the August incident at Alberts' house she told Stark about that particular occurrence. *fn150 Stark was less than encouraging and told her if she wanted him to step in he would handle it. *fn151 Discouraged Alberts replied that she would try to handle it herself. *fn152 She attempted to do so by avoiding Crew. *fn153

The week following the July pool cue incident Alberts told Stark about that occurrence as well. *fn154 Stark responded without enthusiasm that he bet Crew would not have done that to a man. *fn155 Furthermore Stark acknowledged that Crew had been a problem and that some day he was going to get the company in a lot of trouble. *fn156 Nevertheless Stark's reaction was nonchalant and he did not offer to formally discuss the matter with Alberts in the context of a sexual harassment complaint. *fn157

In addition between June 1992 and November 1992 Alberts told Maggie Watson on approximately three occasions that Crew had done something to her. *fn158 In September or October 1992 Watson gave Alberts a note pad that said All Men Are Created Equal, All Women Are Created Superior. *fn159 Watson told her she could write notes to her "friend" Crew on the note pad. *fn160

Furthermore Alberts heard several people make comments that Crew was socially aggressive with women. *fn161 Crew has dated at least three female Wickes employees. *fn162 As a matter of fact at a company party Crew and his Wickes date exhibited sexual behavior observed by several managers. *fn163

Moreover Stark was aware that Crew dated one female Wickes employee in particular because he observed them together in the office leaving the office and out at a bar. *fn164 He also heard that Crew dated a former Wickes employee. *fn165

On November 5 1992 Alberts met with Stark and formally complained that she believed Jim Crew had been sexually harassing her. *fn166 She requested Stark to take action and address the issue. *fn167 In addition she informed Stark of Crew's behavior in Dubuque and his continuing behavior thereafter which she interpreted as sexually harassing. *fn168 Alberts was crying during the meeting with Stark. *fn169 She asked Stark if he wanted specific details about the incident and Stark replied he did not. *fn170 When Alberts finished telling him about the incident he stated I knew it and "God damn him." *fn171

Stark did not take notes during the meeting with Alberts. *fn172 Eight days later November 13 1992 he drafted a memorandum regarding the meeting. *fn173 Furthermore between Thursday November 5 and Monday November 9 Stark took no action to begin his investigation into Alberts' allegations. *fn174 He waited until November 9 1992 to speak to Frank Chambers ("Chambers") Senior Vice President responsible for the operations area in which Crew worked. *fn175

Consequently Alberts did not tell Stark immediately following the Dubuque incident the specific details because she was afraid she would lose her job and her home. *fn176 Alberts observed that other female employees who complained of sexual harassment had either lost their jobs or experienced retaliation which compelled them to leave their jobs. *fn177 Furthermore because of the sexual harassment investigation in which she participated in Michigan she was aware that zone managers were very powerful. *fn178 Incidentally she was extremely embarrassed humiliated and feared that she would be told she asked for it. *fn179

On November 10 1992 Wickes received a letter from Alberts' attorney addressed to Chambers which set forth her allegations. *fn180 Also on November 10 Crew came into Alberts office and asked her how she was doing. *fn181 She told him to leave and go bother someone else. *fn182 Crew had not been advised of Alberts allegations at this time. *fn183

Later that afternoon Chambers telephoned Crew and advised him that Alberts made a sexual harassment complaint against him. *fn184 However Chambers would not give Crew the details. *fn185 Chambers told him they needed to meet to discuss it. *fn186 However Chambers did not tell Crew to avoid contact with Alberts during this phone call. *fn187 On November 12 1992 Crew met with Stark and Chambers. He was told for the first time to avoid all contact with Alberts. *fn188

After Crew met with Stark and Chambers and was told to avoid all contact with Alberts he walked directly past her office and stared into her office at her. *fn189 On another occasion Crew sat at a clerk's desk directly outside Alberts' office and stared at her. *fn190 Additionally in February 1993 Alberts was waiting outside Bob Adam's office when Crew came up and stood in extremely close proximity directly behind her the entire time she waited making Alberts feel uncomfortable. *fn191

Stark did not contact Alberts again until November 12 1992. *fn192 At that time Stark requested Alberts to tell him the details about the Dubuque incident. *fn193 Also during the meeting Alberts reported other incidents between herself and Crew. *fn194 Stark did take notes during this meeting but did not write a formal memorandum until November 16 1992. *fn195

Between November 5 1992 and November 25 1992 Stark did not interview any witnesses named by Alberts or Crew. *fn196 Finally on November 25 he interviewed Steve Cecil Manager of the Davenport Store. *fn197 The interview took place over the telephone. *fn198

Stark did not ask Cecil to describe Crew's behavior. *fn199 His questioning focused more on Alberts' behavior in Dubuque. *fn200 Furthermore Stark did not write a memorandum regarding this interview until December 8 1992 two weeks later. *fn201

The next two interviews occurred on December 8 1992 two weeks after Cecils' interview. *fn202 Stark interviewed Joe Hill and Tom Ward. *fn203 Following on December 17 1992 Stark interviewed Gloria Dryjanski. *fn204 Although Dryjanski worked at the same office as Stark he waited six weeks to talk to her. *fn205 Stark met with Wade Baldwin on December 22 1992. *fn206 Baldwin also works at the same office as Stark yet Stark waited over six weeks to talk to him. *fn207 Last Stark met with Greg Dryjanski Gloria's husband who was not an employee at Wickes. *fn208 Stark met with him on January 29 1993. *fn209

Stark did not interview any other store managers present at the Dubuque meeting other than Cecil Hill and Ward. *fn210 Furthermore he did not interview former Wickes employees Mike Costoff and Candy Plickta. *fn211 These are individuals that Alberts identified as present during some of the other incidents of which she complained. *fn212 Nevertheless Stark made no effort to contact them. *fn213

Stark did not meet with Alberts to give her an update on the progress of the investigation until January 17 1993. *fn214 At that time Stark told Alberts he had interviewed a number of employees and believed her allegations were a "setup." *fn215 He further stated that if her allegations were an attempt to get money based on the results of the investigation the company was not going to roll over and pay her a bunch of money. *fn216

In addition he stated that her allegations were unsubstantiated and other individuals who were present viewed her behavior as flirtatious and "wild." *fn217 However none of the witnesses interviewed except Gloria Dryjanski told Stark that Alberts behaved in a flirtatious manner with Crew. *fn218 Consequently he told Alberts he "did not know her anymore." *fn219

After Alberts met with Stark she returned home and had a conversation with Baldwin. *fn220 Baldwin testified that she was extremely upset crying and inconsolable. *fn221 He informed Stark that Alberts was very hurt by Stark's conclusion. *fn222 Stark agreed. *fn223

Stark informed Chambers and Watson on the progress of his investigation into Alberts' allegations. *fn224 He gave copies of his memoranda regarding the investigation to Watson Chambers and John Morgret the Chief Financial Officer at Wickes. *fn225

He determined that both Crew's and Alberts' account of the events were credible. *fn226 However he found "key aspects were in conflict." *fn227 Additionally he determined that Alberts' "actions and behavior while still at the zone meeting and immediately following the incident were inconsistent with [her] allegations." *fn228 Specifically Stark concluded that because Alberts stayed in Dubuque after her presentation for the golf outing and had dinner with Crew that evening her behavior was inconsistent with her allegations. *fn229 Stark never met with Alberts personally to inform her of the ultimate results of his investigation. *fn230 He simply left a copy of his February 6 1993 memorandum for her. *fn231 He then left his job at Wickes and moved out of the state. *fn232

The conclusion and action plan proposed by Stark consisted of counseling Crew on "appropriate relationships" with employees and on sexual harassment. *fn233 In addition Crew was to be warned that similar allegations would result in serious discipline. *fn234 Stark did not follow up to see whether such counseling or warning took place. *fn235 He simply left a copy of his memorandum on the action plan for George Finkenstaedt who was then out of the office. *fn236 Stark had never given Finkenstaedt any instruction on how to counsel an employee regarding sexual harassment. *fn237 Furthermore Crew denies ever being counseled or disciplined about the events or that he ever received a memorandum about it. *fn238

The final action plan on Alberts' sexual harassment allegations was determined three months following her formal complaint. *fn239 Stark testified that it was his best recollection that no other sexual harassment investigation that he participated in took three months to complete. *fn240 Furthermore Watson could not recall any sexual harassment investigation at Wickes that took longer than one month to complete. *fn241 All sexual harassment complaints which Alberts was responsible for investigating or assisting Stark in investigating were completed in two to four weeks and in most cases as little as one week. *fn242

For example Alberts assisted Stark in the investigation of a sexual harassment complaint made by an employee of Wickes' Birch Run Michigan store. *fn243 Stark began his investigation by traveling to Michigan the very next day after receiving the complaint. *fn244 Stark and Alberts interviewed all of the witnesses in one day. *fn245 Alberts was instructed to telephone and interview former Wickes employees who had knowledge regarding the alleged offender. *fn246 Stark concluded his investigation and determined an action plan within two weeks of receiving the complaint. *fn247 The female eventually quit and the male employee remained employed by Wickes. *fn248

On February 6 1993 Stark left Wickes for another offer. *fn249 When he announced his resignation Alberts told him that she hoped she would be considered for his job. *fn250 Incidently some time between late August and early October 1992 Stark told Alberts that she would be a very good candidate for his job and she could do it with little or no training. *fn251 However Alberts was not considered for or promoted into the Director of Human Resources position vacated by Stark. *fn252

In February 1993 Peter Stein contacted Alberts and advised her that Watson had contacted him concerning a human resources position at Wickes that she wanted him to fill. *fn253 Stein told Alberts that Watson took him to dinner and informed him this position was at a higher level than Alberts'. *fn254 In addition Watson asked Stein the amount of salary he would accept to come back to Wickes. *fn255 Stein told Alberts the position was for an administrative manager. *fn256 Furthermore he informed her that the company had an organizational chart and strategic plan for the Human Resources Department. *fn257 This was the first time Alberts learned there was a higher level Human Resources position available. *fn258

On February 8 1993 Alberts met with Watson to discuss the position. *fn259 Watson told Alberts there were no opportunities for her at Wickes because she had no management skills. *fn260 Contrary to what Stein told Alberts Watson denied the department was being restructured and stated that although some restructuring had been discussed there was no plan in writing. *fn261

After her conversation with Watson Alberts called Stark. *fn262 She asked him whether she ever exhibited any performance deficiencies she should be aware of. *fn263 He replied there were not and that she had always done a good job. *fn264 Nevertheless Stark testified that in 1992 Alberts was experiencing performance deficiencies however he could not identify any examples. *fn265 Moreover the alleged deficiencies were not noted in any performance review. *fn266 To the extent Alberts' job performance was deficient after June 17 1992 it was related to the emotional impact of Crew's sexual assault and harassment of her. *fn267 After the incident in Dubuque Alberts had trouble sleeping and eating she suffered panic attacks migraine headaches and felt degraded and humiliated each day she went to work making it more difficult to do her job. *fn268

In addition prior to leaving the company Stark asked Alberts to travel to stores in the field and take part in a benefits rollout program which was being performed by the whole Human Resources Department. *fn269 However after Alberts made allegations of sexual harassment against Crew Wickes later forbade her to travel on business and would not allow her to participate in the benefits rollout. *fn270 Stark told Alberts that Watson made the decision forbidding her from traveling on business. *fn271

In February 1993 Mike Walker was promoted to Operational Project Manager. *fn272 Bob Adams ("Adams") who took over Stark's position assigned Alberts the responsibility for management recruitment again. *fn273 Adams also informed Alberts that Wickes was trying to hire a field recruiter and a non-exempt employee recruiter although those were duties Alberts had been performing. *fn274 Moreover the new hires would not report to Alberts. *fn275

Also in February Alberts met with Watson and Adams at which time they relieved her of her supervisory duties. *fn276 Alberts was responsible for management recruiting merit increases for the company corporate employee recruiting and daily employee relations issues. *fn277 She told Watson and Adams that she needed to delegate to the employees she supervised and without them it would be difficult to perform all of her responsibilities. *fn278 They replied that the decision had been made and they felt it would be in her best interests. *fn279 Alberts testified that two or three days later without explanation Adams told her she could have her staff back. *fn280

Following her sexual harassment complaint against Crew on November 5 1992 and her charge of discrimination filed on December 9 1992 some of the store managers would no longer work with her. *fn281 Additionally rumors were spread by employees that she had lost a rape case against Crew and that she was sleeping with him. *fn282 Moreover other employees kept their distance as well. *fn283

Adams first learned of Alberts' allegations on February 6 1993 the day Stark left. *fn284 Within the first two weeks of assuming responsibilities as Director of Human Resources and Communications Watson discussed Alberts' allegations with Adams. *fn285 She told him she thought the allegations were invalid. *fn286

On March 4 1993 Alberts told Adams that she was resigning. *fn287 She informed him that she accepted another opportunity and she did so based upon the fact that she was told there were no opportunities at Wickes for her that she was unhappy with the way things had been handled and that she was dissatisfied with Stark's investigation of her claims. *fn288

On March 18 1993 Alberts presented a letter of resignation to Watson stating she found the conditions at Wickes so intolerable that she had no choice but to resign. *fn289 In particular following her sexual harassment claim Alberts was forbidden to travel on business left out of projects that were normally part of her job excluded from communications essential to properly perform her job and more responsibility was heaped on her yet her supervisory responsibilities were taken away. *fn290 In addition Watson informed Alberts there were no opportunities for her at Wickes because she had no management skills. *fn291 She was not considered for the Director of Human Resources position after Stark left. *fn292 Furthermore Stark's written conclusion of his investigation essentially stated that Alberts had "asked for it." *fn293 Importantly Alberts found the working conditions intolerable because Crew did not stay away from her. *fn294

It's important to note that the position Alberts took at Silo was a step back from her position at Wickes. *fn295 It was less responsibility and a longer commute. *fn296

Bob Adams was the Director of Training and Development until he became Director of Human Resources and Communications Stark's former position. *fn297 As Director of Training and Development he had responsibility for the assessment of internal candidates the identification and recruitment of external candidates the training of field management employees product and project training of all store employees and field management recruitment. *fn298 He had a bachelor's degree in Education and a master's degree in Education Administration. *fn299

Adams lacked experience with the HRIS system or how to operate. *fn300 In addition he lacked experience in the development of executive compensation programs exempt salary schedules center manager and zone manager bonus plans or stock option plans. *fn301 His only exposure to home office bonus plans was to provide input to Stark. *fn302 In addition he had no experience establishing bonus or commission plans market analysis of jobs salary surveys position evaluation point factor analysis establishing pay ranges on his own regression analysis workers compensation claims drafting employee benefit plans or addressing COBRA issues. *fn303

As a matter of fact White was hired to perform the duties relative to compensation and the HRIS system that Adams was not qualified to perform. *fn304 Sharon Bellnap performed the duties relative to employee benefits that he was not qualified to perform. *fn305 Roger Sether performed the duties relative to worker's compensation that he was not qualified to perform. *fn306 Finally Stein performed the duties relative to recruiting and employee relations. *fn307

A few other people and situations deserve mention. Peter Stein was hired in 1986 as a Field Management Recruiter Grade 4. *fn308 He was responsible for recruiting store management and periodically recruiting corporate exempt and non-exempt employees. *fn309 Stein had no other duties other than recruitment and held that position until he left Wickes in 1989. *fn310

On April 1 1989 Stein received a salary increase from $38 500 to $40 500 which was the upper one-third of the salary range for Grade 4 employees. *fn311 According to Stark Stein was paid more than Alberts because he had more experience in all levels of recruitment primarily at the management level. *fn312 However Stark claims the only difference between Stein's duties and Alberts' duties was that Stein had more involvement in management recruitment. *fn313

On June 7 1993 Stein was rehired by Wickes as Manager of Employment and Employee Relations. *fn314 He was now responsible for the entire recruitment process at Wickes and regional employee relations for Region 1. *fn315 His salary was $55 000 and bonus eligible. *fn316

Mike Walker transferred to the Human Resources Department in 1990 as a training coordinator. *fn317 In April 1991 Walker received an increase from $44 000 to $46 000 when his title changed to Manager Field Recruitment and Training. *fn318 He recruited a lower level type of employee for management positions in the field. *fn319 He recruited college students while Alberts had been recruiting "fast-trackers" and competitor's employees. *fn320 Furthermore Walker only performed part of the recruiting process. *fn321 He coordinated interviews ran the ads met with candidates and referred them on. *fn322 In contrast Alberts handled the entire process in addition to the functions Walker performed. *fn323 She offered the position to the candidate suggested compensation to the zone manager and the regional vice president saw the candidate through the hire process set up the drug test sent out the offer letter and worked with the employee on relocation. *fn324

Tim White was the Manager of Compensation in 1990. *fn325 His duties included the design and administration of all compensation programs with the exception of executive compensation. *fn326 According to Stark White performed some duties that Alberts did not perform such as compensation pay programs benefit bonus programs and installation of the HRIS system. *fn327 After he left the company in the Fall 1990 Alberts was responsible for monitoring the HRIS system. *fn328

When White was promoted in 1990 he received a salary increase from $37 900 to $41 700. *fn329 He was promoted as motivation to stay with Wickes since Leeds Building Products had been recruiting him. *fn330 Nevertheless he left. However he was rehired on April 6 1993 as Manager of Compensation and Administration at a salary of $55 000. *fn331 He is responsible for the entire compensation process has regional employee relations responsibility for Region 2 and workers compensation duties. *fn332

JURISDICTION

This court has jurisdiction pursuant to 28 U.S.C. SEC. 1331 and 28 U.S.C. SEC. 1367.

DISCUSSION

Defendant Wickes Lumber moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits . . . show there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. Pro. 56(c). When reviewing the record on summary judgment this court must draw all reasonable inferences in the light most favorable to the nonmovant. Anderson v. Stauffer Chemical Co. 965 F.2d 397 400 (7th Cir.1992). However to avert summary judgment plaintiff must do more than raise "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 586 106 S. Ct.1348 1355 89 L. Ed. 2d 538 (1986). The nonmovant must present specific factors showing a genuine issue for trial. Celotex Corp. v. Catrett 477 U.S. 317 324 106 S. Ct.2548 2553 91 L. Ed. 2d 265 (1986). A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 106 S. Ct.2505 2510 91 L. Ed. 2d 202 (1986). Nevertheless summary judgment must be approached with caution in employment discrimination cases because intent is often a crucial issue and is often not susceptible to resolution though summary judgment. See Beard v. Whitley County REMC 840 F.2d 405 410 (7th Cir.1988). We turn to the motion at hand with these principles in mind.

  1. SEXUAL HARASSMENT
Plaintiff argues in Count I of her complaint as well as the text of her pleading that defendants are liable for sexually harassing plaintiff under two categories: (1) Quid Pro Quo sexual harassment and (2) hostile work environment.
  1. Quid Pro Quo
In discussing Alberts' allegation of quid pro quo sexual harassment we must first address the threshold issue of whether Alberts can present such for the first time in her Memorandum in Opposition To Defendant's Motion for Summary Judgment. This court holds that she can. All claims of discrimination are cognizably that are "like or reasonably related to the allegations of the charge and growing out of such allegations." Babrocky v. Jewel Food Co. 773 F.2d 857 864 (7th Cir.1985). This standard is a liberal one in order to effectuate the remedial purposes of Title VII which depends on lay persons to enforce its provisions. Id. Certainly plaintiff's quid pro quo allegations are reasonably related and grow out of the same allegations as her hostile work environment charge. Although it would have been more appropriate for plaintiff to include the quid pro quo allegation in her complaint at the outset the standard is a liberal one. Furthermore it still allows the defendants to respond to the allegation in their reply memorandum.

Wickes contends that Alberts has failed to allege a quid pro quo claim. Quid pro quo sexual harassment has been defined by EEOC guidelines as:

Unwelcome sexual advances requests for sexual favors and other verbal or physical conduct of a sexual nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment . . . .

29 C.F.R. SEC. 1604.11(a)(1) (1993). This type of sexual harassment describes situations in which submission to sexual demands is made a condition of tangible employment benefits. Dockter v. Rudolph Wolff Futures Inc. 913 F.2d 456 461 (7th Cir.1990). It is enough to show that the supervisor used the employee's acceptance or rejection of his advances as the basis for a decision affecting the compensation terms conditions or privileges of the employee's job. Karibian v. Columbia Univ. 14 F.3d 773 778 (2nd Cir.1994).

Plaintiff has failed to sufficiently allege a claim for quid pro quo sexual harassment. First Crew was not her supervisor Stark was. *fn333 Although Crew could recommend the termination of Alberts he could not outright fire or promote her without the approval of his supervisor and most likely the approval of Stark. *fn334

Second plaintiff alleges no set of facts in support of a quid pro quo claim. She never asserts that Crew conditioned any terms of her employment on sexual favors either explicitly or implicitly. This is probably because he lacked any control over whether she received any kind of employee benefits.

Further plaintiff's case can be distinguished from Karibian. The plaintiff in that case stated that her work assignments raises and promotions depended on her continued responsiveness to the alleged harasser's sexual demands. Id. She claimed he implicitly threatened to fire her and to damage her career if she did not comply. Id. In contrast Alberts has failed to allege any facts that would even remotely support a quid pro quo claim. She never alleged that Crew implicitly threatened to fire her or even recommend her termination. There is no genuine issue of fact as to this allegation and it is recommended that defendant's motion for summary judgment be granted as to Albert's alleged sexual harassment under the quid pro quo claim.

  1. Hostile Work Environment
Defendants contend the incidents complained of did not constitute a hostile work environment. In order to create a hostile work environment the conduct at issue must "have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating hostile or offensive working environment." Saxton v. American Tel. & Telegraph Co. 10 F.3d 526 533 (7th Cir.1993) (quoting Meritor Sav. Bank FSB v. Vinson 477 U.S. 57 65 106 S. Ct.2399 2404-05 91 L. Ed. 2d 49 (1986)). Meritor explains that for sexual harassment to be actionable it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." Saxton 10 F.3d at 533.Relatively isolated instances of mild misconduct will not support a hostile environment claim. Id. To determine whether an individual's work environment is hostile within the meaning of Title VII courts look to a variety of factors 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." Id. at 534 (quoting Harris v. Forklift Sys. Inc. 114 S. Ct.367 371 126 L. Ed. 2d 295 (1993)).

The focus is on the totality of circumstances no single factor is required. Id. Although a single act can be enough generally repeated incidents create a stronger claim of hostile environment with the strength of the claim depending on the number of incidents and the intensity of each incident. King v. Board of Regents of the Univ. of Wisc. Sys. 898 F.2d 533 537 (7th Cir.1990). Furthermore these factors are evaluated from both a subjective and objective viewpoint. Saxton 10 F.3d at 534. This means that not only is the effect of the discriminatory conduct on the plaintiff considered but the impact it likely would have had on a reasonable employee in their position is also considered. Id. The concept of sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women. Baskerville v. Culligan Int'l Co. 50 F.3d 428 430 (7th Cir.1995).

In support of her claim plaintiff alleges several incidents purporting to create a hostile working environment. *fn335 The most severe incident occurred in Dubuque Iowa during a business trip when Crew allegedly sexually assaulted plaintiff. *fn336

Additionally after this incident Crew attempted to get physically close to plaintiff while at work. *fn337 He would sit on the credenza in her office just inches away from her chair rather than sitting in a chair across her desk. *fn338 Furthermore he would approach her in the halls and at the water. *fn339 Moreover after being told to avoid all contact with the plaintiff Crew walked directly past her office and stared into the office at her. *fn340 On another occasion he sat outside plaintiff's office at a clerk's desk and simply stared at her. *fn341 On yet another occasion Crew came up behind plaintiff and stood in extremely close proximity to her while she was waiting outside Adams' office. *fn342 Alone the latter incidents do not appear to be offensive or threatening. However when coupled with an alleged sexual assault such acts may sufficiently constitute severe harassment creating an abusive working environment. In some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile working environment. Saxton 10 F.3d at 536 n.18 (quoting Ellison v. Brady 924 F.2d 872 883 (9th Cir.1991)).

Looking at Crew's conduct from a subjective viewpoint there is no doubt that plaintiff was adversely affected. She alleges she was extremely embarrassed and humiliated. *fn343 Moreover plaintiff states the attack and the incidents that followed caused her to suffer from panic attacks migraine headaches and she had trouble sleeping. *fn344 She felt degraded every day she went to work. *fn345 Therefore plaintiff satisfies the subjective prong to demonstrate a hostile working environment.

In addition the objective prong is satisfied. A reasonable employee in the position of the plaintiff would find the working environment hostile. The alleged sexual assault alone suffices to create an abusive working environment. The other incidents merely strengthen plaintiff's claim. Thus plaintiff has sufficiently alleged that Crew's conduct created a hostile work environment in violation of Title VII.

In Baskerville v. Culligan Int'l Co. the court held that no reasonable jury would find that the defendant created a hostile working environment. 50 F.3d 428 431. In that case the alleged harasser never touched the plaintiff never asked her out on dates or asked her to engage in sexual relations. Id. The plaintiff brought a claim based merely on offensive remarks. See id.

Alberts' case can be distinguished. There was definitely physical contact. Whether it was consensual or not is a question of fact for the trier of fact. Furthermore Crew asked plaintiff on a date on two occasions. *fn346 Moreover he did not have to ask her to engage in sexual relations because it appears she did not have much choice. The incidents complained of are more than "sophomoric comments and social antagonism." *fn347 Therefore there is sufficient evidence in the record to establish a genuine issue of material fact as to whether the alleged incidents of harassment were pervasive enough to create a hostile working environment.

However the analysis does not end there. A sufficient allegation of a hostile working environment does not necessarily lead to liability. Employers are no longer held strictly liable for sexual harassment by their supervisory employees. Brooms v. Regal Tube Co. 881 F.2d 412 420 (7th Cir.1989) (citing Meritor Sav. Bank FSB v. Vinson 477 U.S. 57 72 91 L. Ed. 2d 49 106 S. Ct.2399 (1986)). However employers shall be strictly liable for sexual harassment by supervisory employees who have the power to hire fire or promote. Zorn v. Helene Curtis Inc. 903 F. Supp.1226 (N.D.Ill. Sept. 25 1995). In contrast with regard to fellow employees an employer is liable for an employee's action if the employer knew or should have known about an employee's acts of harassment and fails to take appropriate remedial action. Brooms 881 F.2d at 421; C.F.R. SEC. 1604.11(d) (1993).

Plaintiff alleges that Crew as a zone manager can make recommendations to terminate managers. *fn348 However such recommendations are subject to approval by the zone manager's supervisor. *fn349 It does not appear from the facts that Crew has the power to "hire fire or promote" plaintiff. Nevertheless plaintiff contends that zone managers are very powerful. *fn350 However she does not allege specific facts describing the extent of that power in the company's hierarchy. Furthermore defendant contends that although Crew was a manager he was not plaintiff's supervisor or anywhere in her chain of command. *fn351 Incidentally the EEOC guidelines as plaintiff notes do not specify whether the manager or supervisor must be in the plaintiff's chain of command or simply a manager or supervisor in the company. See C.F.R. SEC. 1604.11(c) (1993). *fn352 It is unclear from the facts where Crew's position at Wickes was in the company's hierarchy.

In Saxton v. American Tel. & Telegraph Co. the purported harasser was the plaintiff's supervisor. See 10 F.3d 526 528. The court applied the fellow employee standard of liability stated above. Id. at 535. The court noted in a footnote that although the accused harasser was plaintiff's supervisor the record did not suggest that he was so highly placed in the company's hierarchy as to be considered the company's agent. Id. at 536 n.19. Likewise in Brooms v. Regal Tube Co. the court applied the fellow employee standard of liability where the alleged harasses was plaintiff's supervisor. See 881 F.2d 412 416 & 420.

Following the Seventh Circuit's lead it is the court's position that the fellow employee standard of liability should be applied to these facts. In particular in both Brooms and Saxton the harasser was the plaintiff's supervisor and the court applied the fellow employee standard of liability. In contrast Crew is not plaintiff's supervisor. This is even more reason to apply such a standard to the case at hand.

The first prong of the fellow employee standard of liability asks whether the employer knew or should have known about an employee's acts of harassment. See Brooms 881 F.2d at 421. Plaintiff contends that within weeks of the Dubuque incident she told Stark that Crew had done something to her. *fn353 She reiterated this several times to Stark with little response from him. It can reasonably be concluded that as the Director of Human Resources Stark should have been put on notice that plaintiff was attempting to tell him something disturbing happened to her. It would not have been inappropriate for Stark to inquire further into plaintiff's statement. Regardless she did formally complain of Crew's sexually harassing conduct on November 5 1992. *fn354 Thus at this point Stark had actual knowledge of Crew's purported acts of harassment.

In addition plaintiff informed Watson on approximately three occasions that Crew had "done something" to her. *fn355 In response Watson gave plaintiff a notepad that said All Men are Created Equal, All Women are Superior. *fn356 In fact Watson suggested to plaintiff that she write notes to Crew on the notepad. *fn357

Plaintiff alleges she did not inform Stark of the specific details of Crew's sexual harassment before November 5 because she was afraid she would lose her job. *fn358 Additionally plaintiff contends she has observed other female employees who complained of sexual harassment and either lost their jobs or experienced retaliation which compelled them to leave the company. *fn359 Moreover she was extremely embarrassed and humiliated. *fn360 Considering the alleged sexual assault plaintiff experienced the delay in officially informing Stark of Crew's behavior is quite understandable. Viewing this set of facts in the light most favorable to the plaintiff it can be concluded that defendants knew of Crew's sexual harassment. Therefore there is sufficient evidence in the record as to this first prong to establish a genuine issue of material fact.

The second prong of the fellow employee standard of liability asks whether the defendant failed to take appropriate remedial action. See Brooms 881 F.2d at 421. An employer's response to alleged instances of employee harassment must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made. Id. A court should not focus solely upon whether the remedial activity ultimately succeeded but instead should determine whether the employer's total response was reasonable under the circumstances as then existed. Id.

After plaintiff formally complained to Stark on November 5 he took no action until November 9. *fn361 On that day he informed Chambers Senior Vice President responsible for the operations area in which Crew worked of plaintiff's allegations. *fn362 Furthermore it was not until November 12 that Crew was told for the first time to avoid all contact with plaintiff. *fn363

In addition Stark did not interview any witnesses until November 25 1992. *fn364 The investigation itself took approximately three months to complete. In fact Stark did not meet with plaintiff to inform her of the ultimate results. He simply left a memorandum on her desk and then left the company. *fn365

Consequently the action plan consisted of counseling Crew on "inappropriate relationships" with employees and sexual harassment. *fn366 He was to be warned that similar allegations would result in serious discipline. *fn367 Stark did not follow up on the action plan. In fact Crew denies ever receiving any counseling or warning of discipline. *fn368

Moreover plaintiff asserts that no other sexual harassment complaint took three months to investigate and propose an action plan. Stark's testimony corroborates plaintiff's assertion. *fn369 Furthermore all sexual harassment complaints that plaintiff worked on with Stark took two to four weeks at the most and as little as one week. *fn370 In one investigation of a sexual harassment complaint Stark flew to the store location the next day. *fn371 In addition Stark failed to interview witnesses that both plaintiff and Crew suggested that he talk to. The length of time Stark took to complete the investigation and to propose an action plan was unreasonable.

Plaintiff also argues that Stark on some occasions did not take notes while conducting the interviews. He did write down the questions he asked but did not formally write up the interviews in a memorandum until a few days later. Moreover it appears that he focused more on plaintiff's conduct than on Crew's. One might infer that he was essentially attempting to find support to conclude that plaintiff was at fault or lying. The manner of his investigation was unreasonable considering the circumstances.

Defendant contends that Stark's actions were reasonable. It appears from their assertions that Stark went out of his way to complete the investigation in the midst of relocating to another job although it was his job as Director of Human Resources to investigate sexual harassment complaints. Additionally defendant contends that because the investigation resulted in inconclusive findings the remedial action taken was appropriate. *fn372

Defendant's reference to Saxton v. American Tel. & Telegraph Co. is misplaced. In that case the company began the investigation the very next day after advised of plaintiff's complaint. 10 F.3d 526 535 (7th Cir.1993). The company's report was completed in two weeks and the alleged harasser was transferred to another department within five weeks. Id. There is no comparison between the actions of AT & T and Stark. Stark did not meet with Crew until seven days later. Moreover his investigation took three months to complete. Thus defendant's reference to Saxton fails to offer any support to their contentions.

Nash v. Electrospace Sys. Inc. 9 F.3d 401 (5th Cir.1993) provides further support for plaintiff's allegation that defendant's efforts of remedial action were lacking. Although the company could not corroborate the plaintiff's allegations because the purported harassed denied any improper conduct the company transferred plaintiff to another department with no loss of pay or benefits. Id. at 403. The investigation and the transfer were completed within one week of the formal complaint. Id. Again Stark's actions provide no comparison.

Therefore plaintiff has provided specific factors that would allow a rational trier of fact to conclude the existence of a hostile working environment and liability attributable to the defendant. These factors create genuine issues of material fact as to Alberts' alleged sexual harassment under the hostile work environment theory and therefore it is recommended that summary judgment be denied.

  1. CONSTRUCTIVE DISCHARGE
In both Counts I and II of Alberts' complaint she alleges that she was constructively discharged. In Count II she alleges that she was intentionally passed over for a promotion. In particular Alberts states that Wickes' failure to promote Alberts was caused by defendant Crew's assault battery and continued unwelcome overtures of a sexual nature.

Defendant contends that plaintiff fails to provide sufficient facts to state a claim for constructive discharge. An employer constructively discharges an employee only if it makes an employee's working conditions so intolerable that the employee is forced into involuntary resignation. Saxton 10 F.3d 526 536. Whether the plaintiff's work environment meets that standard is determined from the viewpoint of a reasonable employee. Id. at 537. However an employee may not be unreasonably sensitive to his working environment. Brooms v. Regal Tube Co. 881 F.2d 412 423 (7th Cir.1989) (quoting Johnson v. Bunny Bread Co. 646 F.2d 1250 1256 (8th Cir.1981)). An employee must seek legal redress while remaining in his or her job unless confronted with an aggravated situation beyond ordinary discrimination. Brooms 881 F.2d at 423 (quoting Bailey v. Binyon 583 F. Supp.923 929 (N.D.Ill.1984)). Moreover whether an individual was constructively discharged is a question not well-suited to disposition by summary judgment. Thames v. Maurice Sporting Goods Inc. 686 F. Supp.208 213 (N.D.Ill.1988).

Plaintiff alleges several facts which support her constructive discharge claim. First she alleges that after Crew was told to avoid all contact with plaintiff he walked past her office and stared into the office at her. *fn373 In addition sometime in February Crew came up behind plaintiff in extremely close proximity and stood there while she was waiting to go into the office of Bob Adams. *fn374 These incidents caused plaintiff to feel uncomfortable in light of the Dubuque incident.

Furthermore Crew was never disciplined in accordance with the action plan. From the incidents just mentioned he did not avoid contact with the plaintiff. Moreover after Stark asked plaintiff to travel to take part in a benefits roll out Watson turned around and forbade her from any business travel. *fn375 One might infer this was because plaintiff's sexual assault allegation stemmed from a business trip.

In addition some of the store managers that previously worked with plaintiff would no longer work with her. *fn376 Rumors were spread by employees that Alberts lost a rape case against Crew and that she was sleeping with him. *fn377 Plaintiff was also relieved of her supervisory duties albeit for a few days. *fn378 Furthermore she was told by Watson there were no opportunities for her at Wickes when a former employee called her to ask her about an opening in the Human Resources Department. *fn379 It is possible that a reasonable employee in the position of the plaintiff would find these working conditions so intolerable as to compel her to resign.

Again defendant's reference to Saxton v. American Tel. & Telegraph Co. can be distinguished. In that case the plaintiff was allowed to work at home during the investigation of her complaint. 10 F.3d 526 537 (7th Cir.1993). In addition the plaintiff was given the choice whether she or the alleged harasser should be transferred. Id. When she decided to stay the alleged harasser was transferred soon thereafter. Id.

On the other hand plaintiff in this case was not offered the opportunity to work at home to avoid further confrontation with Crew during the investigation. In fact Crew was barely disciplined at all let alone transferred to another zone. The company did not extend to plaintiff any action that would aid in alleviating the working environment she endured until her resignation.

In sum plaintiff offers specific facts to controvert defendant's motion for summary judgment on this issue. Genuine issues of material fact exist concerning plaintiff's constructive discharge and therefore it is recommended that defendant's motion for summary judgment as to the constructive discharge allegation be denied.

  1. DENIAL OF PROMOTION
Defendant asserts that plaintiff was not promoted for nondiscriminatory reasons. A plaintiff bringing suit under Title VII can meet his burden of proof for establishing intentional discrimination either through direct proof of discriminatory intent or through the indirect burden-shifting method of proof first elaborated in McDonnell Douglas Corp. v. Green 411 U.S. 792 93 S. Ct.1817 36 L. Ed. 2d 668 (1973). Von Zuckerstein v. Argonne Natl. Lab. 984 F.2d 1467 1472 (7th Cir.1993) cert. denied 114 S. Ct.419 126 L. Ed. 2d 365 ( ). First the plaintiff must establish the alleged discriminatory acts. Id. With respect to failure to promote a plaintiff must prove by a preponderance of the evidence that: (1) the plaintiff is a member of a protected [*83] group; (2) the plaintiff applied for and was qualified for the position sought; (3) the defendant rejected the plaintiff for the position; and (4) the defendant granted that promotion to a person whose [gender] was different from that of the plaintiff's but whose qualifications were similar or less than those of the plaintiff. Id. at 1472-73. The defendant must then offer legitimate nondiscriminatory explanations for those acts. Id. at 1472. The burden then shifts back to the plaintiff to show why the defendant's stated justifications are pre textual. Id.

Plaintiff is a member of a protected group under Title VII. She is a woman. Therefore plaintiff meets the first criteria required to demonstrate discriminatory intent.

There are no facts proposed from either side that describes precisely the requirements to perform Stark's job. Therefore it is difficult to determine whether plaintiff was in fact qualified. Plaintiff purports to provide evidence that she was qualified for Stark's position as Director of Human Resources. Plaintiff contends that Stark himself told her she would be a very good candidate for the job and she could do it with little or no training. *fn380 Of course he told her this before she filed a sexual harassment complaint.

In addition plaintiff has a bachelor's degree in Industrial/Organizational Psychology. *fn381 She worked in the Human Resources Department for approximately five years. She has attended seminars on employment law and unemployment compensation. *fn382 Furthermore she has attended a conference involving HRIS software and is certified by the American Compensation Association. *fn383 She has attended six to seven courses covering topics such as wage and hour laws the Fair Labor Standards Act job structures job ranking job valuation slotting jobs setting pay structures salary surveys marketing and internal data internal and external equity and regression analysis. *fn384 Moreover plaintiff gained experience in management recruiting and compensation when she took over the responsibilities of Peter Stein and Tim White. *fn385 She also maintained the HRIS system. *fn386 Additionally she assisted Stark in many of his functions throughout the years and participated in sexual harassment investigations. *fn387 One could infer viewing the evidence in the intolerable that such experience qualified plaintiff for the position and taking the facts in a light most favorable to plaintiff it can be concluded that the second element of the prima facie test has been satisfied.

The third and fourth elements require plaintiff to prove that defendant rejected plaintiff for the position and granted the promotion to a person whose gender was different from the plaintiff's and whose qualifications were similar or less than those of the plaintiff. There is no dispute that defendant rejected plaintiff for the promotion to Stark's old position. Second there is no dispute that defendant granted the promotion to a male specifically Bob Adams. Adams gender is obviously different than that of plaintiff.

Furthermore it could be argued that Adams' qualifications were similar or less than plaintiff's but again it depends on what qualifications were required to fulfill Stark's position. Adams worked for Wickes for seventeen years. *fn388 He also had experience in management training and development organizational design and recruitment. *fn389 In addition at one time he was a store manager and a school administrator. *fn390 He had degrees from Westchester State University and Temple University. *fn391 However it appears from the facts that plaintiff had more experience than Adams specifically dealing with human resources issues. Thus one could infer viewing the evidence in the light most favorable to plaintiff that there are genuine issues of material fact in regard to whether plaintiff was qualified and whether Adams was less qualified.

Following the burden shifts to the defendant to offer legitimate nondiscriminatory explanations for hiring Adams as opposed to plaintiff. Defendant contends that Adams was hired solely on business considerations. *fn392 However as previously stated due to the lack of information concerning what exactly was required to qualify for Stark's position it is difficult to determine whether this contention has any support. However the fact that Adams had to hire four additional employees to compensate for the experience he lacked lends credence to the conclusion that perhaps plaintiff's qualifications were superior and that defendant's justifications are pre textual. A rational jury could find for the plaintiff based on these facts. Accordingly it is recommended that defendant's motion for summary judgment as to Wickes' failure to promote Alberts be denied.

  1. RETALIATION
Defendant asserts that plaintiff fails to allege a retaliation claim. Title VII makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by [Title VII]." Dey v. Colt Constr. & Dev. Co. 28 F.3d 1446 1457 (7th Cir.1994) (citing 42 U.S.C. SEC. 2000e-3(a)). To establish a prima facie case of retaliation the rules are essentially the same as stated in the previous claim except that different elements are required to show discrimination. See Dey 28 F.3d at 1457 (7th Cir.1994); Johnson v. Sullivan 945 F.2d 976 980 (7th Cir.1991). To demonstrate retaliation the plaintiff must show that: (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action. Dey 28 F.3d at 1457.

There is no question that plaintiff engaged in statutorily protected expression. An employee may engage in statutorily protected expression under section 2000e-3(a) even if the challenged practice does not actually violate Title VII. Id. It is sufficient if the plaintiff has a reasonable belief that she is challenging conduct which is in violation of Title VII. 28 F.3d at 1458. Plaintiff's protected expression consists of formally complaining to Stark of Crew's alleged sexual harassment and filing the charge with the EEOC. Therefore this is sufficient to satisfy the first criteria to establish a retaliation claim.

The second element requires that plaintiff suffer an adverse action by her employer. A constructive discharge may constitute an adverse action. See Zorn v. Helene Curtis Inc. 903 F. Supp.1226 (N.D.Ill.1995). As previously stated plaintiff has presented sufficient facts for a rational trier of fact to conclude that she was constructively discharged. Thus the same facts support her alleged adverse action in terms of her retaliation claim.

The final criteria requires plaintiff to demonstrate a causal link between the protected expression and the adverse action. The acts supporting plaintiff's constructive discharge claim occurred after she formally complained to Stark and after she filed her charge. Plaintiff was allegedly not promoted to Stark's former position when he told her she would be a good candidate for the job. Of course he told her this before she complained of sexual harassment.

Second Watson informed her there were no opportunities for her at Wickes. She told plaintiff this after Watson called Stein to offer him an available position in the Human Resources Department. In addition Adams hired approximately four individuals to cover the areas that Adams lacked experience in. These areas concerned responsibilities that plaintiff had been performing. Therefore plaintiff has provided sufficient circumstantial evidence of a causal link between the protected expression and the adverse action and thereby establishes a prima facie case of discrimination.

The defendants contend that Adams was the better candidate for the position. However as previously stated there are facts which arguably indicate that this statement is merely pre textual. Thus there are genuine issues of fact concerning this claim and it is recommended that summary judgment as to Alberts' retaliation claim be denied.

  1. WAGE DISCRIMINATION
Before addressing plaintiff's wage discrimination claim. We must first determine whether it is time-barred. Plaintiff alleges that the instances complained of constitute a continuing violation and therefore are not barred by the 300 day time limitation to file a complaint with the EEOC. The continuing violation doctrine allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period. Ficek v. Griffith Lab. Inc. 1995 U.S. Dist.1153 67 Fair Empl. Prac. Cas. (BNA) 1396 No. 93 C 6178 1995 WL 42081 *4 (N.D Ill. Feb. 1 1995). The court must look to a three-part test to determine whether a defendant's actions were related enough to constitute a continuing violation as opposed to being isolated acts forming separate violations. Id. (citing Selan v. Kiley 969 F.2d 560 565 (7th Cir.1992)). The three factors address the subject matter frequency and degree of permanence of the alleged acts:

Do the alleged acts involve the same type of discrimination tending to connect them in a continuing violation? . . . Are the alleged acts recurring . . . or more in the nature of an isolated assignment or employment decision? . . . Does the act have a degree of permanence which should trigger an employee's awareness and a duty to assert his or her rights or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?

Id.

The first requisite turns to the subject matter of the discrimination. The alleged acts do involve the same type of discrimination connecting them to a continuing violation. Plaintiff alleges that she was discriminated against in terms of compensation because of her gender. Thus plaintiff satisfies the first requirement.

Second plaintiff must demonstrate that the alleged acts were recurring as opposed to isolated assignments or employment decisions. One could infer that each time plaintiff took over new responsibilities without a pay increase she suffered discriminatory treatment. Specifically she took over the responsibilities of Peter Stein in August 1989 and Tim White in the Fall 1990. *fn393 In neither instance did she receive a pay increase. Furthermore plaintiff received a title change in the Fall 1992 without a pay increase. *fn394 In addition both Stein and White were later rehired in 1993 at $55 000 each to perform responsibilities that plaintiff essentially performed. When plaintiff left Wickes in 1993 she was earning $42 000. *fn395 Therefore plaintiff alleges sufficient facts to show the discriminatory acts were recurring.

Finally plaintiff must demonstrate that the alleged acts did not have a degree of permanence which should have triggered her awareness and a duty to assert her rights. This is where plaintiff's continuing violation claim must fail as to certain allegations. If a person knows or with reasonable diligence would have known after each act that it was discriminatory and had harmed him he may not sit back and accumulate all the discriminatory acts and sue within the statutory period applicable to the last one. Moskowitz v. Trustees of Purdue Univ. 5 F.3d 279 282 (7th Cir.1993).

Plaintiff performed Stein's recruiting duties from 1989 to 1991 and again in 1993. *fn396 Plaintiff's allegation that she took over Stein's responsibilities in 1989-1991 and did not receive an increase in salary are time-barred. Additionally her allegation that she took over Tim White's compensation duties in 1990 without a pay increase is time-barred. Finally plaintiff's allegation that Mike Walker was assigned certain recruitment responsibilities and received an increase in salary in 1990 while plaintiff performed the same duties at a lower rate of pay is also time-barred. There is no question that plaintiff knew that of these allegedly discriminatory acts of defendant. In fact plaintiff wrote a memorandum to Stark referring to these issues and requested Stark to re-evaluate her position for an increase in pay. *fn397 The memorandum is evidence that plaintiff knew of these acts back in 1991 at the latest and failed to file a timely discrimination charge. Therefore it is recommended that Wickes' motion as to the salary discrimination claim be granted.

  1. EQUAL PAY ACT
Defendants assert that plaintiff fails to allege sufficient facts to support her Equal Pay Act ("EPA") claim. EPA prohibits sex-based discrimination:

No employer having employees subject to any provisions of this section shall discriminate within any establishment in which such employees are employed between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill effort and responsibility and which are performed under similar working conditions . . .

29 U.S.C. SEC. 206(d)(1). To establish a prima facie case of discrimination plaintiff must demonstrate: (1) different wages are paid to employees of the opposite sex; (2) the employees do equal work which requires equal skill effort and responsibility; and (3) the employees have similar working conditions. *fn398 Dey v. Colt Constr. & Dev. Co. 28 F.3d 1446 1461 (7th Cir.1994). In assessing whether two jobs require equal skill effort and responsibility we look to the duties actually performed by each employee not to his or her job description or title. Id. If two employees have a "common core" of tasks the second element of the prima facie case is satisfied unless the employer can show that the higher paid employee was assigned additional tasks that made his job substantially different. Id. "Common core" refers to situations where a significant portion of the two jobs is identical. See Fallon v. State of Illinois 882 F.2d 1206 1209 (7th Cir.1989).

Plaintiff alleges that she was paid different wages than Stein White and Walker. Specifically she asserts that she assumed all of Stein's responsibilities when he left the company in 1989. *fn399 At the time Stein was earning $40 500. *fn400 plaintiff was earning only $31 200 with an increase eight months later to $33 200. *fn401

Furthermore if plaintiff assumed all of Stein's responsibilities as alleged then it can be argued that she must have been performing equal work requiring equal skill effort and responsibility. Moreover Stark contends that the only difference between Stein's and plaintiff's duties is that Stein had more involvement in management recruiting. *fn402 This difference is not sufficiently substantial to cause plaintiff's claim to fail at the motion for summary judgment stage.

Furthermore plaintiff contends that when Stein was rehired in 1993 he was performing the same functions as plaintiff yet he was paid $55 000. *fn403 At the time plaintiff resigned she was only earning $42 000. *fn404 Again plaintiff offers facts tending to show that she and Stein were performing equal work requiring equal skill effort and responsibility. Therefore with regard to Stein she also satisfies the second requirement to establish a prima facie case.

In addition she alleges that in the Fall 1990 she assumed some of Tim White's duties with regard to his position as Manager of Compensation. *fn405 When White left he was earning $41 700. *fn406 Plaintiff was earning $37 500. *fn407 Moreover when White was rehired in 1993 he also was offered $55 000. *fn408 Again plaintiff was only earning $42 000. *fn409 Thus plaintiff has demonstrated facts tending to show that she was being paid a different wage than a member of the opposite sex.

Plaintiff also alleges that Walker earned a higher salary when his title changed in April 1991. At that time he was earning $46 000. *fn410 At that time plaintiff was earning $37 000. *fn411 Thus plaintiff has satisfied the first element to establish a violation of EPA.

Next plaintiff must show that she was performing equal work requiring equal skill effort and responsibility as her male counterparts. Plaintiff's allegation regarding Stein is satisfied as stated above. With regard to White plaintiff alleges that she took over some of his responsibilities in 1990. Plaintiff became responsible for assisting Stark in the administration of compensation programs that were used in the stores and the corporate office in addition to her other duties. *fn412 Nevertheless Stark contends that White performed some duties that plaintiff did not assume when he left. These duties consist of compensation pay programs benefit bonus programs and the installation of the HRIS system. *fn413 It appears that these additional duties particularly the installation of the HRIS computer system required more skill effort and responsibility than was required of plaintiff. Furthermore plaintiff contends that she assisted Stark in administration of compensation programs used in the stores and the corporate office. *fn414 But the mere fact that she assisted Stark lends credence to the argument that she did not assume White's responsibilities alone. Thus the record is in conflict and a genuine issue as to the material facts exists.

White's employment with Wickes in 1993 must be examined as well. It is unclear from the facts whether plaintiff performed the same functions as White when he was rehired. White was hired as the Manager of Compensation and Administration. *fn415 His duties encompassed the entire compensation process regional employee relations and workers compensation. *fn416 From the facts plaintiff has offered one can infer that taking on the entire compensation process alone requires more skill effort and responsibility than plaintiff was exercising at the time thereby creating a substantial difference in responsibility as a whole. Reading the facts in a light most favorable to the plaintiff the court simply cannot determine whether the two jobs require equal skill effort and responsibility. Therefore with regard to White plaintiff has raised a genuine issue as to material facts and it is recommended that defendant's motion for summary judgment be denied.

Finally the court must look at plaintiff's allegations concerning Mike Walker. Plaintiff alleges that Walker recruited a lower level type of employee for management positions in the field. *fn417 She alleges further that she handled the entire recruitment process in addition to the functions Walker performed. *fn418 It appears from the facts that plaintiff and White were not doing equal work but in fact plaintiff held more responsibility than Walker yet he was earning a higher salary. At best there are genuine issues of material fact concerning this allegation. Thus plaintiff has set forth sufficient facts to establish a prima facie case of discrimination in violation of EPA.

Once the plaintiff makes out a prima facie case the employer bears the burden of showing that the pay disparity is due to: (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of productions; or (iv) a differential based on any factor other than sex. Dey 28 F.3d at 1462. The factor need not be related to the requirements of the particular position in question nor must it even be business-related. Id. The factor other than sex must be bona fide. Fallon 882 F.2d at 1211. An employer cannot use a gender-neutral factor to avoid liability unless the factor is used and applied in good faith. Id.

Defendants contend that the pay disparities were based on a factor other than sex. Defendants assert that Stein had thirteen years of work experience including eight years in personnel a bachelor's degree and master's degree. *fn419 According to Stark plaintiff was not paid the same as Stein because Stein's experience made him a more valued and capable employee. *fn420 However at this point plaintiff had seven years experience in the human resources field. *fn421 Additionally plaintiff had a bachelor's degree as well. *fn422 The only real differences in their background was a six year discrepancy in experience and a master's degree. This could or could not justify a $9 300 pay differential. If a person of one sex succeeds a person of the opposite sex on a job at a higher rate of pay than the predecessor and there is no reason for the higher rate other than gender a violation as to the predecessor is established . . 29 C.F.R. SEC.0.13(b)(4) (1993). Defendant's do not offer any justification for paying Stein $55 000 when they rehired him in 1993. *fn423 Thus a rational trier of fact could find in favor of plaintiff. Therefore genuine issues of material fact exist and it is recommended that summary judgment be denied.

In addition defendants contend that Walker had additional responsibilities justifying the differential in pay. *fn424 Those responsibilities consisted of being in charge of the company's computerization of its stores. *fn425 Additionally defendant's allege that Walker had "vastly" more years of experience than plaintiff in management. *fn426 Nevertheless plaintiff asserts that she also had additional responsibilities distinct from those of Walker yet she was paid $9 000 less than Walker. *fn427 In light of the facts one could infer that this does not seem justifiable. Therefore plaintiff has provided specific facts precluding defendant's motion for summary judgment.

CONCLUSION

For the reasons stated above it is hereby recommended that Defendant's motion be granted as to the plaintiff's quid pro quo claim and denied as to all other claims.

Respectfully submitted

RONALD A. GUZMAN

United States Magistrate Judge

Any objections to this Report and Recommendation must be filed with Judge Plunkett within ten (10) days of receipt of this notice. See Fed.R.Civ.P.72(b); 28 U.S.C. SEC.(b)(1). Failure to object constitutes a waiver of the right of appeal. Egert v. Connecticut General Life Ins. Co. 900 F.2d 1032 1039 (7th Cir.1990).

 
Notes:

*fn1 Plaintiff's Rule 12(n)(3)(b) Statement of Additional Material Facts P 1 ("Plaintiff's Additional Facts").

*fn2 Plaintiff's Additional Facts P 3.

*fn3 Plaintiff's Additional Facts P 3.

*fn4 Plaintiff's Additional Facts P 3.

*fn5 Plaintiff's Additional Facts P 3.

*fn6 Plaintiff's Additional Facts P 5.

*fn7 Plaintiff's Additional Facts P 6.

*fn8 Plaintiff's Additional Facts P 6.

*fn9 Plaintiff's Additional Facts P 7.

*fn10 Plaintiff's Additional Facts P 7.

*fn11 Plaintiff's Additional Facts P 7.

*fn12 Plaintiff's Additional Facts P 8.

*fn13 Plaintiff's Additional Facts P 8.

*fn14 Plaintiff's Additional Facts P 8.

*fn15 Plaintiff's Additional Facts P 8.

*fn16 Plaintiff's Additional Facts P 9.

*fn17 Plaintiff's Additional Facts P 9.

*fn18 Plaintiff's Additional Facts P 9.

*fn19 Plaintiff's Additional Facts P 9.

*fn20 Plaintiff's Additional Facts P 9.

*fn21 Plaintiff's Additional Facts P 10.

*fn22 Plaintiff's Additional Facts P 10.

*fn23 Plaintiff's Additional Facts P 10.

*fn24 Plaintiff's Additional Facts P 10.

*fn25 Plaintiff's Additional Facts P 10.

*fn26 Plaintiff's Additional Facts P 12.

*fn27 Plaintiff's Additional Facts P 12.

*fn28 Plaintiff's Additional Facts P 13.

*fn29 Plaintiff's Additional Facts P 13.

*fn30 Plaintiff's Additional Facts P 13.

*fn31 Plaintiff's Additional Facts P 15.

*fn32 Plaintiff's Additional Facts P 15.

*fn33 Plaintiff's Additional Facts PP 15-16.

*fn34 Plaintiff's Additional Facts P 16.

*fn35 Plaintiff's Additional Facts P 16.

*fn36 Plaintiff's Additional Facts P 16.

*fn37 Plaintiff's Additional Facts P 16.

*fn38 Plaintiff's Additional Facts P 16.

*fn39 Plaintiff's Additional Facts P 18.

*fn40 Plaintiff's Additional Facts P 17.

*fn41 Plaintiff's Additional Facts P 17.

*fn42 Plaintiff's Additional Facts P 19.

*fn43 Plaintiff's Additional Facts P 19.

*fn44 Plaintiff's Additional Facts P 19.

*fn45 Plaintiff's Additional Facts P 20.

*fn46 Plaintiff's Additional Facts P 20.

*fn47 Plaintiff's Additional Facts P 20.

*fn48 Plaintiff's Additional Facts P 20.

*fn49 Plaintiff's Additional Facts P 20.

*fn50 Plaintiff's Revised Memorandum in Opposition to Defendant Wickes' Motion for Summary Judgment p.2 ("Plaintiff's Revised Memo").

*fn51 Plaintiff's Additional Facts P 22.

*fn52 Plaintiff's Additional Facts P 22.

*fn53 Plaintiff's Additional Facts P 22.

*fn54 Plaintiff's Additional Facts P 25.

*fn55 Plaintiff's Additional Facts P 25.

*fn56 Plaintiff's Additional Facts P 25.

*fn57 Plaintiff's Additional Facts P 26.

*fn58 Plaintiff's Additional Facts P 26.

*fn59 Plaintiff's Additional Facts P 26.

*fn60 Plaintiff's Additional Facts P 28.

*fn61 Plaintiff's Additional Facts P 28.

*fn62 Plaintiff's Additional Facts P 28.

*fn63 Plaintiff's Additional Facts P 28.

*fn64 Plaintiff's Additional Facts P 29.

*fn65 Plaintiff's Additional Facts P 30.

*fn66 Plaintiff's Additional Facts P 30.

*fn67 Plaintiff's Additional Facts P 32.

*fn68 Plaintiff's Additional Facts P 32.

*fn69 Plaintiff's Additional Facts P 32.

*fn70 Plaintiff's Additional Facts P 32.

*fn71 Plaintiff's Additional Facts P 32.

*fn72 Plaintiff's Additional Facts P 32.

*fn73 Plaintiff's Additional Facts P 35.

*fn74 Plaintiff's Additional Facts P 35.

*fn75 Plaintiff's Additional Facts P 36.

*fn76 Plaintiff's Additional Facts P 36.

*fn77 Plaintiff's Additional Facts P 36.

*fn78 Plaintiff's Additional Facts P 36.

*fn79 Plaintiff's Additional Facts P 37.

*fn80 Plaintiff's Additional Facts P 37.

*fn81 Plaintiff's Additional Facts P 39.

*fn82 Plaintiff's Additional Facts P 39.

*fn83 Plaintiff's Additional Facts P 41.

*fn84 Plaintiff's Additional Facts P 42.

*fn85 Plaintiff's Additional Facts P 42.

*fn86 Plaintiff's Additional Facts P 42.

*fn87 Plaintiff's Additional Facts P 42 and 45.

*fn88 Plaintiff's Additional Facts P 42.

*fn89 Plaintiff's Additional Facts P 43.

*fn90 Plaintiff's Additional Facts P 43.

*fn91 Plaintiff's Additional Facts P 43.

*fn92 Plaintiff's Additional Facts P 43.

*fn93 Plaintiff's Additional Facts P 44.

*fn94 Plaintiff's Additional Facts P 44.

*fn95 Plaintiff's Additional Facts P 44.

*fn96 Plaintiff's Additional Facts P 44.

*fn97 Plaintiff's Additional Facts P 44.

*fn98 Plaintiff's Additional Facts P 49.

*fn99 Plaintiff's Additional Facts P 49.

*fn100 Plaintiff's Additional Facts P 49.

*fn101 Plaintiff's Additional Facts P 49.

*fn102 Plaintiff's Additional Facts P 49.

*fn103 Plaintiff's Additional Facts P 50.

*fn104 Plaintiff's Additional Facts P 50.

*fn105 Plaintiff's Additional Facts P 52.

*fn106 Plaintiff's Additional Facts P 52.

*fn107 Plaintiff's Additional Facts P 54.

*fn108 Plaintiff's Additional Facts P 54.

*fn109 See Plaintiff's Additional Facts P 54.

*fn110 Plaintiff's Additional Facts P 55.

*fn111 Plaintiff's Additional Facts P 55.

*fn112 Plaintiff's Additional Facts P 57.

*fn113 Plaintiff's Additional Facts P 57.

*fn114 Plaintiff's Additional Facts P 57.

*fn115 Plaintiff's Additional Facts P 57.

*fn116 Plaintiff's Additional Facts P 57.

*fn117 Plaintiff's Additional Facts P 58.

*fn118 Plaintiff's Additional Facts P 62.

*fn119 Plaintiff's Additional Facts P 62.

*fn120 Plaintiff's Additional Facts P 62.

*fn121 Plaintiff's Additional Facts P 65.

*fn122 plaintiff's Additional Facts P 65.

*fn123 Plaintiff's Additional Facts P 65.

*fn124 Plaintiff's Additional Facts P 67.

*fn125 Plaintiff's Additional Facts P 67.

*fn126 Plaintiff's Additional Facts P 67.

*fn127 Plaintiff's Additional Facts P 67.

*fn128 Plaintiff's Additional Facts P 67.

*fn129 Plaintiff's Additional Facts P 67.

*fn130 Plaintiff's Additional Facts P 67.

*fn131 Plaintiff's Additional Facts P 67.

*fn132 Plaintiff's Additional Facts P 67.

*fn133 Plaintiff's Additional Facts P 67.

*fn134 Plaintiff's Additional Facts P 67.

*fn135 Plaintiff's Additional Facts P 67.

*fn136 Plaintiff's Additional Facts P 68.

*fn137 Plaintiff's Additional Facts P 68.

*fn138 Plaintiff's Additional Facts P 68.

*fn139 Plaintiff's Additional Facts P 68.

*fn140 Plaintiff's Additional Facts P 68.

*fn141 Plaintiff's Additional Facts P 68.

*fn142 Plaintiff's Additional Facts P 64.

*fn143 Plaintiff's Additional Facts P 64.

*fn144 Plaintiff's Additional Facts P 64.

*fn145 Plaintiff's Additional Facts P 64.

*fn146 Plaintiff's Additional Facts P 72.

*fn147 See Plaintiff's Revised Memo p. 2.

*fn148 Plaintiff's Additional Facts P 72.

*fn149 Plaintiff's Additional Facts P 72.

*fn150 Plaintiff's Additional Facts P 74.

*fn151 Plaintiff's Additional Facts P 74.

*fn152 Plaintiff's Additional Facts P 74.

*fn153 Plaintiff's Additional Facts P 74.

*fn154 Plaintiff's Additional Facts P 76.

*fn155 Plaintiff's Additional Facts P 76.

*fn156 Plaintiff's Additional Facts P 76.

*fn157 Plaintiff's Additional Facts P 76.

*fn158 Plaintiff's Additional Facts P 80.

*fn159 Plaintiff's Additional Facts P 82.

*fn160 Plaintiff's Additional Facts P 82.

*fn161 Plaintiff's Additional Facts P 84.

*fn162 Plaintiff's Additional Facts P 86.

*fn163 Plaintiff's Additional Facts P 86.

*fn164 Plaintiff's Additional Facts P 87.

*fn165 Plaintiff's Additional Facts P 87.

*fn166 Plaintiff's Additional Facts P 89.

*fn167 Plaintiff's Additional Facts P 89.

*fn168 Plaintiff's Additional Facts P 89.

*fn169 Plaintiff's Additional Facts P 89.

*fn170 Plaintiff's Additional Facts P 89.

*fn171 Plaintiff's Additional Facts P 89.

*fn172 Plaintiff's Additional Facts P 91.

*fn173 Plaintiff's Additional Facts P 91.

*fn174 Plaintiff's Additional Facts P 92.

*fn175 Plaintiff's Additional Facts P 92.

*fn176 Plaintiff's Additional Facts P 108.

*fn177 Plaintiff's Additional Facts P 108.

*fn178 Plaintiff's Additional Facts P 108.

*fn179 Plaintiff's Additional Facts P 108.

*fn180 Plaintiff's Additional Facts P 95.

*fn181 Plaintiff's Additional Facts P 97.

*fn182 Plaintiff's Additional Facts P 97.

*fn183 Plaintiff's Additional Facts P 97.

*fn184 Plaintiff's Additional Facts P 98.

*fn185 Plaintiff's Additional Facts P 98.

*fn186 Plaintiff's Additional Facts P 98.

*fn187 Plaintiff's Additional Facts P 98.

*fn188 Plaintiff's Additional Facts P 98.

*fn189 Plaintiff's Additional Facts P 114.

*fn190 Plaintiff's Additional Facts P 114.

*fn191 Plaintiff's Additional Facts P 115.

*fn192 Plaintiff's Additional Facts P 106.

*fn193 Plaintiff's Additional Facts P 106.

*fn194 Plaintiff's Additional Facts P 107.

*fn195 Plaintiff's Additional Facts P 106.

*fn196 Plaintiff's Additional Facts P 125.

*fn197 Plaintiff's Additional Facts P 125.

*fn198 Plaintiff's Additional Facts P 125.

*fn199 Plaintiff's Additional Facts P 133.

*fn200 See Plaintiff's Additional Facts P 134.

*fn201 Plaintiff's Additional Facts P 125.

*fn202 Plaintiff's Additional Facts P 136.

*fn203 See Plaintiff's Additional Facts P 136-146.

*fn204 See Plaintiff's Additional Facts PP 147-155.

*fn205 Plaintiff's Additional Facts P 147.

*fn206 See Plaintiff's Additional Facts PP 156-161.

*fn207 Plaintiff's Additional Facts P 156.

*fn208 See Plaintiff's Additional Facts PP 162-164.

*fn209 Plaintiff's Additional Facts P 162.

*fn210 Plaintiff's Additional Facts P 166.

*fn211 Plaintiff's Additional Facts P 167.

*fn212 See Plaintiff's Additional Facts P 167.

*fn213 See Plaintiff's Additional Facts P 167.

*fn214 Plaintiff's Additional Facts P 170. [*36]

*fn215 Plaintiff's Additional Facts P 170.

*fn216 Plaintiff's Additional Facts P 170.

*fn217 See Plaintiff's Additional Facts P 170.

*fn218 Plaintiff's Additional Facts P 172.

*fn219 Plaintiff's Additional Facts P 170.

*fn220 Plaintiff's Additional Facts P 175.

*fn221 Plaintiff's Additional Facts P 175.

*fn222 See Plaintiff's Additional Facts P 175.

*fn223 See Plaintiff's Additional Facts P 175.

*fn224 Plaintiff's Additional Facts P 176.

*fn225 Plaintiff's Additional Facts P 176.

*fn226 Plaintiff's Additional Facts P 182.

*fn227 Plaintiff's Additional Facts P 182.

*fn228 Plaintiff's Additional Facts P 183.

*fn229 Plaintiff's Additional Facts P 183.

*fn230 Plaintiff's Additional Facts P 180.

*fn231 Plaintiff's Additional Facts P 180.

*fn232 Plaintiff's Additional Facts P 180.

*fn233 Plaintiff's Additional Facts P 185.

*fn234 Plaintiff's Additional Facts P 185.

*fn235 Plaintiff's Additional Facts P 185.

*fn236 Plaintiff's Additional Facts P 185.

*fn237 Plaintiff's Additional Facts P 185.

*fn238 Plaintiff's Additional Facts P 187.

*fn239 Plaintiff's Additional Facts P 188.

*fn240 Plaintiff's Additional Facts P 188.

*fn241 Plaintiff's Additional Facts P 188.

*fn242 Plaintiff's Additional Facts P 188. See also PP 197-200.

*fn243 Plaintiff's Additional Facts P 196.

*fn244 Plaintiff's Additional Facts P 196.

*fn245 Plaintiff's Additional Facts P 196.

*fn246 Plaintiff's Additional Facts P 196.

*fn247 Plaintiff's Additional Facts P 196.

*fn248 Plaintiff's Additional Facts P 196.

*fn249 Plaintiff's Additional Facts P 204.

*fn250 Plaintiff's Additional Facts P 205.

*fn251 Plaintiff's Additional Facts P 205.

*fn252 Plaintiff's Additional Facts P 205.

*fn253 Plaintiff's Additional Facts P 210.

*fn254 Plaintiff's Additional Facts P 210.

*fn255 Plaintiff's Additional Facts P 210.

*fn256 Plaintiff's Additional Facts P 210.

*fn257 Plaintiff's Additional Facts P 210.

*fn258 Plaintiff's Additional Facts P 211.

*fn259 Plaintiff's Additional Facts P 211.

*fn260 Plaintiff's Additional Facts P 211.

*fn261 Plaintiff's Additional Facts P 211.

*fn262 Plaintiff's Additional Facts P 213.

*fn263 Plaintiff's Additional Facts P 213.

*fn264 Plaintiff's Additional Facts P 213.

*fn265 Plaintiff's Additional Facts P 214.

*fn266 Plaintiff's Additional Facts P 214.

*fn267 Plaintiff's Additional Facts P 215.

*fn268 Plaintiff's Additional Facts P 215.

*fn269 Plaintiff's Additional Facts P 216.

*fn270 Plaintiff's Additional Facts P 216.

*fn271 Plaintiff's Additional Facts P 216.

*fn272 Plaintiff's Additional Facts P 217.

*fn273 Plaintiff's Additional Facts P 217.

*fn274 Plaintiff's Additional Facts P 217.

*fn275 Plaintiff's Additional Facts P 217.

*fn276 Plaintiff's Additional Facts P 219.

*fn277 Plaintiff's Additional Facts P 219.

*fn278 Plaintiff's Additional Facts P 219.

*fn279 Plaintiff's Additional Facts P 219.

*fn280 Plaintiff's Additional Facts P 220.

*fn281 Plaintiff's Additional Facts P 223.

*fn282 Plaintiff's Additional Facts P 223.

*fn283 See Plaintiff's Additional Facts P 223.

*fn284 Plaintiff's Additional Facts P 226.

*fn285 Plaintiff's Additional Facts P 226.

*fn286 Plaintiff's Additional Facts P 226.

*fn287 Plaintiff's Additional Facts P 227.

*fn288 Plaintiff's Additional Facts P 227.

*fn289 Plaintiff's Additional Facts P 228.

*fn290 Plaintiff's Additional Facts P 228.

*fn291 Plaintiff's Additional Facts P 228.

*fn292 Plaintiff's Additional Facts P 228.

*fn293 Plaintiff's Additional Facts P 228.

*fn294 Plaintiff's Additional Facts P 229.

*fn295 Plaintiff's Additional Facts P 230.

*fn296 Plaintiff's Additional Facts P 229.

*fn297 Plaintiff's Additional Facts P 240.

*fn298 Plaintiff's Additional Facts P 240.

*fn299 Plaintiff's Additional Facts P 241.

*fn300 Plaintiff's Additional Facts P 243.

*fn301 Plaintiff's Additional Facts P 243.

*fn302 Plaintiff's Additional Facts P 243.

*fn303 Plaintiff's Additional Facts P 244.

*fn304 Plaintiff's Additional Facts P 245.

*fn305 Plaintiff's Additional Facts P 245.

*fn306 Plaintiff's Additional Facts P 245.

*fn307 Plaintiff's Additional Facts P 245.

*fn308 Plaintiff's Additional Facts P 248.

*fn309 Plaintiff's Additional Facts P 248.

*fn310 Plaintiff's Additional Facts P 248.

*fn311 Plaintiff's Additional Facts P 249.

*fn312 Plaintiff's Additional Facts P 250.

*fn313 Plaintiff's Additional Facts P 250.

*fn314 Plaintiff's Additional Facts P 253.

*fn315 Plaintiff's Additional Facts P 253.

*fn316 Plaintiff's Additional Facts P 253.

*fn317 Plaintiff's Additional Facts P 259.

*fn318 Plaintiff's Additional Facts P 260.

*fn319 Plaintiff's Additional Facts P 263.

*fn320 Plaintiff's Additional Facts P 263.

*fn321 Plaintiff's Additional Facts P 263.

*fn322 Plaintiff's Additional Facts P 263.

*fn323 Plaintiff's Additional Facts P 263.

*fn324 Plaintiff's Additional Facts P 263.

*fn325 Plaintiff's Additional Facts P 265.

*fn326 Plaintiff's Additional Facts P 266.

*fn327 Plaintiff's Additional Facts P 267.

*fn328 Plaintiff's Additional Facts P 267.

*fn329 Plaintiff's Additional Facts P 270.

*fn330 Plaintiff's Additional Facts P 270.

*fn331 Plaintiff's Additional Facts P 272.

*fn332 Plaintiff's Additional Facts P 272.

*fn333 Plaintiff's Additional Facts P 10.

*fn334 See Plaintiff's Additional Facts P 22.

*fn335 Defendant's contend that plaintiff was only involved in one offensive incident at work. See Wickes Lumber Company's Memorandum of Law in Support of Motion for Summary Judgment ("WLC's Memo of Law") p. 10.

*fn336 See Plaintiff's Additional Facts PP 42-44.

*fn337 Plaintiff's Additional Facts P 64.

*fn338 Plaintiff's Additional Facts P 64.

*fn339 Plaintiff's Additional Facts P 64.

*fn340 Plaintiff's Additional Facts P 114.

*fn341 Plaintiff's Additional Facts P 114.

*fn342 Plaintiff's Additional Facts P 115.

*fn343 See Plaintiff's Additional Facts P 108.

*fn344 Plaintiff's Additional Facts P 215.

*fn345 Plaintiff's Additional Facts P 215.

*fn346 See Plaintiff's Additional Facts P 62.

*fn347 See WLC's Memo of Law p. 10.

*fn348 Plaintiff's Additional Facts P 22.

*fn349 Plaintiff's Additional Facts P 22.

*fn350 Plaintiff's Revised Memorandum p. 18.

*fn351 Wickes Lumber Company's Reply to Plaintiff's (Revised) Memorandum in Opposition to Defendant's Motion for Summary Judgment ("WLC's Reply") p. 4.

*fn352 Agency principles and the goals of Title VII law make appropriate some limitation on the liability of employers for the acts of supervisors. Meritor Sav. Bank v. Vinson 477 U.S. 57 77 91 L. Ed. 2d 49 106 S. Ct.2399 (1986) (Marshall J. concurring in the judgment). Where for example a supervisor has no authority over an employee because the two work in wholly different parts of the employer's business it may be improper to find strict liability. Id.

*fn353 Plaintiff's Additional Facts P 72.

*fn354 Plaintiff's Additional Facts P 89.

*fn355 Plaintiff's Additional Facts P 80.

*fn356 Plaintiff's Additional Facts P 82.

*fn357 See Plaintiff's Additional Facts P 82.

*fn358 Plaintiff's Additional Facts P 108.

*fn359 Plaintiff's Additional Facts P 108.

*fn360 Plaintiff's Additional Facts P 108.

*fn361 Plaintiff's Additional Facts P 92.

*fn362 Plaintiff's Additional Facts P 92.

*fn363 Plaintiff's Additional Facts P 98.

*fn364 See Plaintiff's Additional Facts P 125.

*fn365 See Plaintiff's Additional Facts P 180.

*fn366 Plaintiff's Additional Facts P 185.

*fn367 Plaintiff's Additional Facts P 185.

*fn368 Plaintiff's Additional Facts P 185.

*fn369 See Plaintiff's Additional Facts P 188.

*fn370 Plaintiff's Additional Facts P 188.

*fn371 See Plaintiff's Additional Facts P 196.

*fn372 See WLC's Memo p. 19.

*fn373 Plaintiff's Additional Facts P 114.

*fn374 Plaintiff's Additional Facts P 115.

*fn375 Plaintiff's Additional Facts P 216.

*fn376 Plaintiff's Additional Facts P 223.

*fn377 Plaintiff's Additional Facts P 223.

*fn378 Plaintiff's Additional Facts P 219.

*fn379 See Plaintiff's Additional Facts P 210.

*fn380 Plaintiff's Additional Facts P 205.

*fn381 Plaintiff's Additional Facts P 5.

*fn382 Plaintiff's Additional Facts P 6.

*fn383 Plaintiff's Additional Facts P 7.

*fn384 Plaintiff's Additional Facts P 7.

*fn385 See Plaintiff's Additional Facts PP 9-10.

*fn386 Plaintiff's Additional Facts P 13.

*fn387 See Plaintiff's Additional Facts P 188.

*fn388 WLC's Memo of Law p. 25.

*fn389 WLC's Memo of Law p. 25.

*fn390 WLC's Memo of Law p. 25.

*fn391 WLC's Memo of Law p. 25.

*fn392 WLC's Memo of Law p. 25.

*fn393 Plaintiff's Additional Facts P 9-10.

*fn394 Plaintiff's Additional Facts P 20.

*fn395 See Plaintiff's Additional Facts P 20.

*fn396 See Plaintiff's Revised Memo p. 29.

*fn397 See Appendix to Plaintiff's Response Volume I Exhibit E.

*fn398 There is no dispute that plaintiff and Stein White and Walker had similar working conditions.

*fn399 Plaintiff's Additional Facts P 9.

*fn400 Plaintiff's Additional Facts P 249.

*fn401 See Appendix to Plaintiff's Response Vol. I Exhibit E.

*fn402 Plaintiff's Additional Facts P 250.

*fn403 Plaintiff's Additional Facts P 253.

*fn404 Plaintiff's Additional Facts P 20.

*fn405 Plaintiff's Additional Facts P 10.

*fn406 Plaintiff's Additional Facts P 270.

*fn407 Plaintiff's Additional Facts P 16.

*fn408 Plaintiff's Additional Facts P 272.

*fn409 Plaintiff's Additional Facts P 20.

*fn410 Plaintiff's Additional Facts P 260.

*fn411 Plaintiff's Additional Facts P 17.

*fn412 Plaintiff's Additional Facts P 10.

*fn413 Plaintiff's Additional Facts P 267.

*fn414 Plaintiff's Additional Facts P 10.

*fn415 Plaintiff's Additional Facts P 272.

*fn416 Plaintiff's Additional Facts P 272.

*fn417 Plaintiff's Additional Facts P 263.

*fn418 Plaintiff's Additional Facts P 263.

*fn419 WLC's Memo of Law p. 30.

*fn420 WLC's Memo of Law p. 30.

*fn421 See Plaintiff's Additional Facts P 3.

*fn422 Plaintiff's Additional Facts P 5.

*fn423 See generally WLC's Memo of Law; WLC's Reply.

*fn424 WLC's Memo of Law p. 32.

*fn425 WLC's Memo of Law p. 32.

*fn426 WLC's Memo of Law p. 32.

*fn427 See Plaintiff's Revised Memo p. 33.