Opinion
IP 01-0702-C M/S
May 21, 2003.
Kevin W. Betz, Betz Associates
William R. Groth, Fillenwarth Dennerline Groth Towe
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on defendant's, Speedway SuperAmerica, LLC ("Speedway"), motion for summary judgment on the complaint of plaintiff, Jamie L. Hicks ("Hicks"). Hicks' complaint alleges sexual harassment in violation of Title VII of the Civil Rights Act of 1964, and intentional and negligent infliction of emotional distress in violation of state law. Speedway has moved for judgment as a matter of law on the basis that it is not liable for the alleged harassment committed by its employee, Hicks' supervisor. For the reasons discussed herein, Speedway's motion is GRANTED.
I. FACTUAL BACKGROUND
Hicks alleges that Speedway is liable under Title VII for having constructively discharged Hicks by refusing to investigate or respond to her complaint of a hostile work environment created by her immediate supervisor, David Shinn ("Shinn"). Complaint ¶ 1. Hicks began working for Speedway as a full-time cashier in November, 1998. Id. ¶ 14. On June 15, 2000, Hicks was promoted to the position of Store Manager of a Speedway store in Avon, Indiana, and was subject to the direct supervisorial authority of Shinn, who was a District Manager. Id. ¶¶ 16, 18. Shinn's office was located in Indianapolis, Indiana, about a thirty-minute drive from the Avon Store. Deposition of Jamie L. Hicks ("Hicks Dep.") at 23-24.
On October 2, 2000, the cash register at Hicks' Avon store was not working properly. Id. at 21. Hicks contacted Shinn to determine what she should do about the broken register. Id. Initially, Shinn instructed Hicks to manually keep track of sales. Id. Hicks did not think her assistant manager would be capable of that, and was unsure how to enter the sales into the register on the following day. Id. at 22-23. Shinn responded that he had a spare register at his office and that Hicks could meet Shinn there to pick up the register. Id. at 23.
Hicks alleges the following scenario took place when she arrived at Shinn's office to retrieve the spare cash register: As Hicks and Shinn were programming the register, Shinn reached into a cup from which he was drinking and took out ice, and attempted to put the ice down Hicks' shirt. Id. at 26. Hicks had to put her arm across her chest to keep Shinn from forcing his hand and arm down her shirt. Id. Shinn also attempted to put ice down Hicks' pants. Id. Hicks told Shinn to stop and that she wanted to leave. Id. Hicks and Shinn agreed they would finish programming the cash register and then Hicks would leave. Id.
Hicks left Shinn's office and entered the adjacent Speedway store (not the same store of which Hicks was Store Manager) to get herself something to drink. Id. at 26-27. When Hicks returned to Shinn's office, Shinn tried again to dump ice down Hicks' shirt. Id. at 27. Shinn also grabbed Hicks' arm and pulled it behind her back hard enough to physically bruise her. Id. Hicks testified that she was very shaken up and announced that she was leaving. Id. Shinn grabbed Hicks' arm a second time, at which time Hicks pushed Shinn away. Id. Hicks then took the cash register and left. Id.
Hicks went directly to her sister's house, which was close to Shinn's office, to try to calm herself down. Id. Hicks then took the cash register to her Speedway store in Avon, where she obtained the phone numbers for Kristi Crum ("Crum"), Speedway's Human Resources Representative, and Roy Chamberlin ("Chamberlin"), Speedway's Regional Manager and Shinn's immediate supervisor. Id. at 28 and Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment ("Brief in Opp.") at 6.
Next, Hicks went home and called Chamberlin to report what had happened, and to tell Chamberlin that she would not be at the Avon store the next day. Hicks Dep. at 52. Hicks does not recall whether she told Chamberlin specifically about the ice or the physical touching. Id. at 55. Hicks was "pretty upset." Id. at 53. Chamberlin responded that someone needed to be at the Avon store to open it. Id. Hicks recalls receiving a telephone call from Crum later that night. Id. at 60. Crum relieved Hicks of the responsibility of opening the Avon store the next morning, October 3, and the two made arrangements to meet at 8:00 in the morning. Id. at 62.
Crum and Hicks met on October 3, 2000, during which time Hicks recounted the incident involving Shinn. Deposition of Kristi Crum ("Crum Dep.") at 57. Hicks also showed Crum the bruise Shinn caused on her arm. Id. at 58. Hicks told Crum she did not want the situation with Shinn to occur again and Crum assured Hicks that her complaint would be thoroughly investigated and that Shinn would no longer be Hicks' supervisor. Id. Crum told Hicks that if she had any problems she should contact Chamberlin rather than Shinn. Hicks Dep. at 119. Hicks claims that she requested to use some vacation time but that Crum refused to let her have the time off. Id. at 97, 120. Crum recalls only that Hicks mentioned already-scheduled vacation time later in the month, and that Hicks had decided not to use that time because to do so she would have to rely on Shinn's help with the store. Crum Dep. at 58-59; Ex. 6 to Brief in Opp. Crum told Hicks to write down and sign her allegations and send them to Crum. Affidavit of Kristi Crum ("Crum Aff.") ¶ 4.
Following her meeting with Hicks, Crum spoke by telephone with her supervisor, Gary Young, and Chamberlin. Crum Dep. at 62. Crum and Chamberlin then personally interviewed Shinn on October 3, 2000, regarding Hicks' allegations. Id. at 63. Crum instructed Shinn that he was not to have any contact with Hicks or the Avon store. Id. at 64. Crum, Chamberlin and Shinn all signed a handwritten document stating that a complaint had been registered and that Shinn was not to have any contact with the Avon store or personnel, that Shinn must be "removed from the situation" pending investigation of the complaint, and that Shinn should not inquire of anyone within the district about the nature of the complaint. Id.; Ex. 8 to Brief in Opp.
Crum then reported to Young about both interviews. Crum Dep. at 71. Young assigned two human resources representatives, Jerri Bruckmann and Jo Smead, to gather additional information. Crum Dep. at 72. One Speedway employee has testified that Bruckmann and Smead did not inquire about Shinn or about incidents of sexual harassment. Deposition of Linda Jewell ("Jewell Dep.") at 12. This same employee testified that Bruckmann asked only whether Speedway's written sexual harassment policy was hung on the employee bulletin board. Id. at 15.
On the evening of October 3, 2000, Hicks received telephone calls at her home that her phone revealed were from Speedway's stores within Shinn's district. Hicks Dep. at 81-82. Because Hicks did not know anyone at those stores, she assumed Shinn was the caller. Id. at 82. Hicks did not answer those phone calls. Id. Hicks' assistant manager informed her that Shinn had called the Avon store during the day asking for Hicks. Id.
On October 4, 2000, Hicks returned to work at the Avon store. Id. at 84. She received several calls that day from Shinn. Id. Shinn would ask, "What's going on?" or "What are you doing?" and then Hicks would hang up the phone. Id. at 85. Shinn did not identify himself, but Hicks recognized Shinn's voice. Id. Hicks claims she called Crum at her office and told Crum that she was very upset and would like to use some of her vacation time immediately. Id. at 86. Hicks claims she told Crum that Shinn continued to call and that "something need[ed] to be done." Id. at 87. Hicks claims Crum refused to allow her to have a couple of days off because no one was available to work for Hicks at the Avon store. Id. at 86, 90, 92. Crum claims that Hicks did not inform her that Shinn made further attempts to contact Hicks. Crum Aff. ¶ 6. Crum claims that during that conversation Hicks did not mention needing time off or ask to use vacation time. Id. On October 4 Hicks also left a voice mail message for Chamberlin, asking for a return call, and paged him several times. Hicks Dep. at 93. Chamberlin did not respond. Id. Hicks then gave the store keys to other Speedway employees, stated that she "really need[ed] to go home" and left the store. Id. at 94.
Hicks has testified that she did not mean to quit her job on October 4, and would have returned to work if Speedway would have contacted her and "taken care of" the situation. Id. at 133. In the charge of discrimination Hicks filed with the EEOC she stated that she quit her employment on October 4, 2000, as a result of Speedway's failure to investigate her claims of sexual harassment. Complaint Ex. 1. Hicks felt she had no choice but to quit. Hicks Dep. at 110. Hicks testified: "[N]obody was willing to do anything to make Dave quit contacting me or allowing me to take time off. What was I going to sit there and do, sit at the store and just break down in tears every time a customer was going to come up?" Id. at 97. Hicks attempted to reach Chamberlin October 5, but Chamberlin did not return Hicks' page. Id. at 99. Hicks' Complaint alleges she was constructively discharged on October 4, 2000. Complaint ¶ 34.
Despite having given Hicks her home, pager and office numbers, Crum did not hear from Hicks again. Crum Aff. ¶ 9. Hicks did not give Crum a written statement of her allegations as Crum had requested. Id. ¶ 6; Hicks Dep. at 100. Hicks testified that she did not have time to write down her allegations and that she "didn't get around to it." Hicks Dep. at 67. Crum followed up on her interview with Shinn on October 11, 2000. Crum Aff. ¶ 9. On October 12, 2000, Crum met with Shinn again to finalize her investigation of Hicks' allegations. Id. ¶ 10. Crum informed Shinn that the investigation was inconclusive and that Crum was unable to substantiate Hicks' allegations. Id. Shinn signed a copy of a discipline form. Crum Dep. at 102. When a sheriff's detective interviewed Shinn regarding Hicks' criminal complaint, Crum attended the interview and may have taken notes. Id. at 86.
At the time Shinn harassed Hicks, Speedway had in place an anti-harassment policy forbidding all forms of harassment based on age, national origin, race, religion, sex or disability. Crum Aff. ¶ 2 and Ex. A. The policy states that if an employee has been a victim of workplace harassment she should immediately contact her supervisor or human resources manager. Id. The policy further states that "a prompt investigation will be conducted and appropriate corrective action will be taken if warranted." Id. Shinn signed Speedway's written policy on October 3, 2000. Ex. 9 to Brief in Opp. Hicks testified that she was familiar with Speedway's sexual harassment policy. Hicks Dep. at 110-11.
Crum also has testified that Speedway records in an employee's personnel file any violations of its policies, disciplinary actions and investigations. Crum Dep. at 16. When an allegation of sexual harassment is made, it is always documented, but Crum is uncertain whether the documentation always goes to the alleged harasser's personnel file. Id. at 19. It is Crum's practice to place documentation of alleged harassment in the alleged harasser's personnel file. Id. Crum took notes during many of her conversations with Hicks and Shinn regarding Hicks' allegations. Id. at 29-30, 51, 64, 86, 100. There are no references to Hicks' complaint against Shinn in either's personnel file. Crum Dep. at 120.
II. STANDARD
Summary judgment is granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Scherer v. Rockwell Int'l Corp., 975 F.2d 356, 360 (7th Cir. 1992). The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem'l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993), cert. denied, 511 U.S. 1005 (1994). This burden cannot be met with conclusory statements or speculation, see Weihaupt v. American Med. Ass'n, 874 F.2d 419, 428 (7th Cir. 1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Brasic v. Heinemann's Inc., Bakeries, 121 F.3d 281, 286 (7th Cir. 1997); Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir. 1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23; Shields Enters., Inc., 975 F.2d at 1294.
III. DISCUSSION
For the purposes of its summary judgment motion, Speedway is not challenging Hicks' allegations of sexual harassment. See Brief in Support of Defendant's Motion for Summary Judgment at 13. Thus, the question for present purposes is not whether Hicks was subject to a sexually hostile environment, but whether Speedway is vicariously liable for Shinn's actions. See Smith v. Sheahan, 189 F.3d 529, 533 (7th Cir. 1999).
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. . . . No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.
Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); accord Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). Hicks must demonstrate the alleged harassment culminated in a tangible employment action; otherwise her claims are subject to Speedway's affirmative defense.
A. TANGIBLE EMPLOYMENT ACTION
Speedway claims an affirmative defense, as enunciated in Faragher v. City of Boca Raton, and Burlington Industries, Inc. v. Ellerth, is available to it because no tangible employment action was taken against Hicks. Hicks argues, however, that she was constructively discharged by Speedway's handling of her complaints of sexual harassment. The Seventh Circuit has not yet determined whether constructive discharge is a tangible employment action within the meaning of Faragher and Ellerth. Wolf v. Northwest Ind. Symphony Soc'y, 250 F.3d 1136, 1142 (7th Cir. 2001); Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 666 (7th Cir. 2001). This Court need not address that issue now, because as a matter of law, Hicks cannot demonstrate she was constructively discharged.
A plaintiff can show she was constructively discharged if she was forced to resign because her working conditions, from the standpoint of a reasonable employee, had become unbearable. EEOC v. University of Chi. Hosp., 276 F.3d 326, 331 (2002); Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th Cir. 1998). The employee must be able to demonstrate that the discriminatory work environment was "even more egregious than the high standard for hostile work environment." University of Chi. Hosp., 276 F.3d at 332. In an "ordinary" hostile environment case, an employee is "expected to remain on the job while seeking redress." Wolf, 250 F.3d at 1143; accord Tutman v. WBBM-TV, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) cert. denied, 531 U.S. 1078 (2001). However, in an "aggravated" case, the employer "makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." Hertzberg v. SRAM Corp., 261 F.3d 651, 658 (7th Cir. 2001) (quoting Saxton v. American Tel. Tel. Co., 10 F.3d 526, 536-37 (7th Cir. 1993) (quoting Weihaupt v. American Med. Ass'n, 874 F.2d 419, 426 (7th Cir. 1989) (emphasis in original))) cert. denied, 534 U.S. 1130 (2002).
Hicks argues that Speedway made her job intolerable by failing to give her immediate vacation time, and by refusing to "address and correct" Shinn's harassing behavior. Brief in Opp. at 29. Hicks alleges Speedway aggravated the hostile environment by forcing Hicks to continue enduring Shinn's harassment. Hicks testified: "[N]obody was willing to do anything to make Dave quit contacting me or allowing me to take time off. What was I going to sit there and do, sit at the store and just break down in tears every time a customer was going to come up?" Hicks Dep. at 97.
Viewing the facts in the light most favorable to the plaintiff, the Court will accept that Hicks request for immediate vacation and was denied. See Hicks Dep. at 86, 90, 92, 97, 120. However, it is undisputed that Crum relieved Hicks from working on October 3, 2000, the day following Shinn's harassment. Hicks Dep. at 62. Crum also interviewed Hicks regarding her allegations on the morning of October 3. Id. Crum interviewed Schinn immediately and ordered him not to have any contact with Hicks or the Avon store. Crum Dep. at 62. Crum, Chamberlin and Shinn all signed a handwritten document stating that a complaint had been registered and that Shinn was not to have any contact with the Avon store or personnel, that Shinn must be "removed from the situation" pending investigation of the complaint, and that Shinn should not inquire of anyone within the district about the nature of the complaint. Id. at 64; Ex. 8 to Brief in Opp. Speedway sent two human resources representatives to help investigate the alleged hostile environment. Crum Dep. at 72. Although one Speedway employee has testified that the human resource representatives did not inquire specifically about Shinn, the Court has not seen any evidence to show their presence made Hicks' situation worse. See Jewell Dep. at 72.
Hicks also argues that Speedway's failure to return Hicks' phone call on October 5, 2000, so that she could explain why she had abruptly left the Avon store on October 4, aggravated her hostile working conditions. Brief in Opp. at 29. Finally, Hicks asserts that Speedway completely disregarded her allegations, as evidenced by the lack of documentation in Shinn's personnel file. Id. at 30. Neither of these facts were known to Hicks before she walked off the job on October 4, 2000, and could not have contributed to her decision to do so.
More significantly, Hicks does not allege, or present any evidence, that Speedway's conduct, in response to her complaints, was discriminatory. See Drake v. Minnesota Mining Mfg. Co., 134 F.3d 878, 887 (7th Cir. 1998) (finding no constructive discharge where the plaintiff feared for her safety because of co-workers' actions, but the plaintiff did not "present evidence suggesting that this fear was the result of discrimination by [the defendant]."). "The working conditions must be more than merely intolerable; they must be intolerable in a discriminatory way." Rabinovitz v. Pena, 89 F.3d 482, 489 (7th Cir. 1996) (citing Chambers v. American Trans Air, Inc. 17 F.3d 998, 1005-06 (7th Cir. 1994)). Hicks must be able to show that she resigned because her working conditions were intolerable "as a result of unlawful discrimination." Tutman, 209 F.3d at 1050. At most, construing the facts in the light most favorable to Hicks, she's demonstrated that Speedway's warning to Shinn not to contact Hicks was not immediately effective.
Based on the undisputed facts before the Court, no rational fact-finder would find that Hicks' work environment had become unbearable from the standpoint of a reasonable employee. Speedway did not do anything to make Hicks' working conditions so intolerable that she was forced to resign. On the contrary, the evidence demonstrates that Speedway was in the process of conducting a thorough investigation when Hicks quit her job. "An employee who quits without giving his employer a reasonable chance to work out a problem has not been constructively discharged." Wolf, 250 F.3d at 1143 (quoting Yearous v. Niobrara County Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir. 1997)). Because Hicks did not suffer a tangible employment action, Speedway has the opportunity to prove an affirmative defense to its vicarious liability for Shinn's actions. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
B. AFFIRMATIVE DEFENSE
Speedway has the burden of proving its affirmative defense beyond a preponderance of the evidence. Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765. "The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonable failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765.
While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.
Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.
Speedway's burden is to show its response was a reasonable one, adequate in light of the situation. See Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999). "One method of demonstrating the exercise of reasonable care is to show the existence of an effective `anitharassment policy with complaint procedure.'" Haugerud v. Amery Sch. District, 259 F.3d 678, 698 (7th Cir. 2001) (quoting Faragher, 524 U.S. at 807). In Savino v. C.P. Hall Company, 199 F.3d 925, 932-33 (7th Cir. 1999), the Seventh Circuit found the defendant employer's conduct adequate under circumstances similar to these. The defendant had a sexual harassment policy posted, which included instructions for reporting harassment. Savino, 199 F.3d at 932-33. Once the plaintiff reported the alleged harassment, the defendant promptly investigated and reprimanded the alleged harasser. Id. at 933. The defendant also physically separated the two employees by relocating the alleged harasser to a different office space, and later suspended him. Id.
Hicks does not dispute that at the time Shinn harassed her, Speedway had in place a sexual harassment policy, with reporting procedure, and that Hicks was familiar with the policy. Hicks Dep. at 110-11. Hicks does not assert that the policy was ineffective or deficient. Brief in Opp. at 18. The policy states that if an employee has been a victim of workplace harassment she should immediately contact her supervisor or human resources manager. Crum Aff. ¶ 2 and Ex. A. The policy further states that "a prompt investigation will be conducted and appropriate corrective action will be taken if warranted." Id. It is clear that Speedway followed its written policy by immediately beginning an investigation. Crum and Hicks met on October 3, 2000, during which time Hicks recounted the incident with Shinn. Crum Dep. at 57. Hicks told Crum she did not want the situation with Shinn to occur again and Crum assured Hicks that her complaint would be thoroughly investigated and that Shinn would no longer be Hicks' supervisor. Id. at 58. Crum told Hicks that if she had any problems she should contact Chamberlin rather than Shinn. Hicks Dep. at 119. Crum gave Hicks her home, pager, and office numbers. Crum Aff. ¶ 9.
Crum and Chamberlin also personally interviewed Shinn on October 3, 2000, regarding Hicks' allegations. Hicks Dep. at 63. Crum admonished Shinn not to have any contact with Hicks or the Avon store. Id. at 64. Crum, Chamberlin and Shinn all signed a handwritten document stating that a complaint had been registered and that Shinn was not to have any contact with the Avon store or personnel, that Shinn must be "removed from the situation" pending investigation of the complaint, and that Shinn should not inquire of anyone within the district about the nature of the complaint. Id.; Ex. 8 to Brief in Opp. Shinn acknowledged Speedway's written sexual harassment policy by his signature on October 3, 2000. Ex. 9 to Brief in Opp. Crum remained in communication with her own supervisor about the situation, and Speedway sent two human resources representatives to stores within Shinn's district, although Hicks argues that their investigation was inadequate.
Hicks argues essentially that Speedway did not adequately and reasonably respond to her complaints because there is no reference to Hicks' allegations in either Hicks' or Shinn's personnel files. Brief in Opp. at 19-20. Hicks asserts that Crum testified that complaints of sexual harassment are always documented on a disciplinary form and placed in the alleged harasser's personnel file. Id. at 19. However, that is not what Crum testified; Crum's testimony refers to documentation of discipline "whenever there is a violation that warrants any performance documentation." Crum Dep. at 37-40. As to allegations of a violation, Crum testified only that when an allegation of sexual harassment is made, it is always documented, but Crum is uncertain whether the documentation always goes to the alleged harasser's personnel file. Id. at 19. It is Crum's practice to place documentation of alleged harassment in the alleged harasser's personnel file. Id. However, Crum's practice does not necessarily become Speedway's policy.
Finally, Hicks argues that Speedway failed to keep her and Shinn apart, as was Speedway's policy, pending investigation. Accepting as true Hicks' assertion that she informed Crum on October 4, 2000, that Shinn "keeps calling," Speedway still has shown it acted reasonably in response to Hicks' allegations. The law requires that Speedway exercise reasonable care to prevent and correct sexual harassment — the law does not require Speedway to do everything humanly possible to guarantee Hicks an immediate resolution. Hicks resigned from her job the same afternoon she informed Crum of Shinn's continued phone calls. It would be unreasonable to expect more from Speedway up to the time Hicks quit.
Hicks' abrupt departure also supports Speedway's argument that Hicks "unreasonably failed to take advantage of any preventive or corrective opportunities provided" by Speedway. See Faragher, 524 U.S. at 807. Hicks had a duty "to avoid or minimize the damages" that resulted from the harassment. Id. at 806. Hicks followed Speedway's policy by immediately contacting Crum and Chamberlin to complain of Shinn's harassing behavior. However, proof that an employee failed to fulfill her obligation of reasonable care is not limited to showing a failure to use the employer's complaint procedure. Id. at 807. By resigning less than 48 hours after reporting Shinn's conduct, Hicks did not give Speedway an opportunity to fully prevent or correct Shinn's conduct. Hicks never wrote down her allegations, as Crum requested. Crum Aff. ¶ 6; Hicks Dep. at 100. Hicks testified that she did not have time to write down her allegations and that she "didn't get around to it." Hicks Dep. at 67. Hicks unreasonably gave up on Speedway in the midst of Speedway's investigation. By prematurely quitting her job and failing to further participate in Speedway's investigation, Hicks failed to take advantage of Speedway's attempts to correct Shinn's behavior and remove the hostility from Hicks' work environment.
Speedway has proved its affirmative defense to Hicks' charges as a matter of law. Speedway's motion for summary judgment on Hicks' Title VII claims is GRANTED.
C. STATE LAW CLAIMS
Hicks also has brought state law claims for intentional and negligent infliction of emotional distress. Because the Court has granted summary judgment on Hicks' federal claims, original jurisdiction is now lacking and the Court may — pursuant to 28 U.S.C. § 1367(c)(3) — properly dismiss Hicks' remaining state law claims. "In the ordinary case of supplemental jurisdiction, the presumption is in favor of relinquishment when the claim that is within the original jurisdiction of the district court was dismissed before trial." Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176 (7th Cir. 1993). See also Alonzi v. Budget Constr. Co., 55 F.3d 331, 334 (7th Cir. 1995). The Court chooses to exercise its discretion under 28 U.S.C. § 1367(c)(3), and hereby DISMISSES without prejudice Hicks' remaining state law claims.
IV. CONCLUSION
Hicks has failed to demonstrate she was constructively discharged. Assuming Hicks was the victim of a hostile environment created by her supervisor, Speedway has proved its affirmative defense to vicarious liability. Accordingly, the Court GRANTS Speedway's motion for summary judgment on Hicks' federal claims of sexual harassment. Because the Court lacks original jurisdiction over Hicks' remaining state claims, those claims are DISMISSED without prejudice.
IT IS SO ORDERED