Opinion
01 C 314
April 23, 2003
OPINION
This is a sexual harassment and national origin discrimination suit arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Civil Rights Act of 1991, as amended. Specifically, plaintiff alleges that for two years, she was subjected to continuous and pervasive sexual harassment and harassment based on her Jewish religion and ethnicity by Dan Kornblut, plaintiff's direct supervisor and the principal at the school where plaintiff worked, which ultimately forced her to resign from her employment. Defendant has moved for summary judgment, which I am denying in part and granting in part for the reasons stated below.
Defendant has also moved to strike plaintiff's Rule 56.1 Statement of Additional Facts, to which plaintiff has responded with both an answer and an amended Statement of Additional Facts. I find that this amended Statement of Additional Facts cures most of the defects raised by defendant, with the exception of Paragraphs 5 2-62, which concern plaintiff's reporting the alleged harassing behavior to defendant and defendant's investigation of those allegations. During discovery, plaintiff sought materials relating to this investigation, which I denied in exchange for defendant's promise not to rely on the affirmative defenses laid out in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) in its summary judgment motion. Defendant has filed with this court its Notice of Intent Not To Rely on Affirmative Defenses for the Purpose of the Pending Motion for Summary Judgment. Consequently, for the purpose of this summary judgment motion, I am not considering facts concerning defendant's investigation of plaintiff's allegations, and defendant's motion to strike with respect to only Paragraphs 52-62 is granted. Additionally, because of defendant's promise not to rely on any Ellerth defenses, I am disregarding Sections III and IV of defendant's summary judgment motion.
Plaintiff's numerous allegations include a constant barrage of sexually suggestive, explicit and derogatory comments, obscene and unwanted looks of a sexual nature, and unwanted touching. Plaintiff alleges that Mr. Kornblut's actions created a hostile work environment for plaintiff, and his actions escalated during the second year of her employment such that her working conditions had become intolerable.
Hostile work environment is caused by conduct that has "the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). The harassment "must be sufficiently severe or pervasive to alter the conditions of [the] victim's employment and create [an] abusive working environment." Id. at 67 (emphasis added). When examining a hostile work environment claim, there is both a subjective element and an objective element that must be met. Gentry v. Export Packaging Co., 238 F.3d 842, 850 (7th Cir. 2001). In determining whether a hostile work environment exists, the court must consider the totality of the circumstances. Id.
Taking plaintiff's allegations as true, as I must for the purpose of this motion, plaintiff clearly perceived her work environment as hostile, which meets the subjective element of her hostile work environment claim. The objective standard, however, is more difficult to discern. To meet the objective element of this test, the allegedly hostile work environment must be judged "from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.'" Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2000). Plaintiff points to the regularity and pervasiveness of the allegedly offending behavior as evidence that her work environment was objectively hostile, while defendant argues that plaintiff's allegations do not amount to severe or pervasive enough harassment to be actionable under Title VII. Clearly, this case does not fall within the realm of physically threatening behavior that leaves no question as to whether the work environment was hostile. Because cases such as this are so fact-intensive, there is no one case providing a definitive answer. However, existing case law does provide some guidance. Defendant argues that plaintiff's allegations amount to nothing more than "simple teasing, offhand comments and isolated incidents" that do not amount to discriminatory changes in the "terms and conditions of employment." Clark County School Dist. v. Breeden, 532 U.S. 268, 271 (2001) (citations omitted). It is true that behavior such as that alleged by plaintiff has been found not to be actionable. See, e.g., Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998) (finding the unwanted touching of the plaintiff's buttocks by a co-worker the most severe conduct alleged, but not actionable); Patt v. Family Health Systems, Inc., 280 F.3d 749, 751-54 (7th Cir. 2002) (finding that eight gender-related comments, although offensive, did not constitute severe or pervasive harassment). If severity was the only consideration in this inquiry, plaintiff would not be able to sustain her claim. However, for a work environment to be hostile, the alleged conduct can be either severe or pervasive. Plaintiff alleges that the Mr. Kornblut's behavior occurred for two years, sometimes on a daily basis. In Hailemariam v. Neomedica, Inc., 1999 U.S. Dist. LEXIS 10707, *10 (N.D.Ill. 1999), the plaintiff alleged at least seven specific incidents of harassment occurring over a four-month period, and the court found that these facts suggested a regular pattern of harassment that a jury could find to be pervasive enough to constitute a hostile environment. Although this case is not binding authority for this court, I agree with the rationale in this holding. Determining whether a hostile work environment exists "is not, and by its nature cannot be, a mathematically precise test." Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). A jury, considering the large number of incidents alleged by plaintiff, the length of time within which they allegedly occurred and the frequency of those incidents, could find that the conduct alleged is sufficiently pervasive to constitute a hostile environment. Thus, I am denying summary judgment with respect to this claim.
To sustain an action of constructive discharge, plaintiff must demonstrate that she was forced to resign because her working conditions were unbearable such that she was subjected to a discriminatory working environment. EEOC v. University of Chicago Hospitals, 276 F.3d 326, 331 (7th Cir. 2002). Resignation is "not truly voluntary if quitting was the only way [a plaintiff] could extricate herself from the intolerable conditions." Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997). According to the testimony of Mr. Kornblut, plaintiff was offered an opportunity to transfer to another school within the district, but she refused. It appears that even though Mr. Kornblut may have created a hostile work environment for plaintiff, she had an opportunity to move away from him but did not. Additionally, plaintiff admits in her deposition that the job for which she left her employment with defendant was an opportunity that she discussed and developed months prior to her resignation. These actions do not suggest that resignation was the only option for plaintiff, and for this reason, I grant defendant's motion with respect to constructive discharge.
Summary judgment is GRANTED with respect to plaintiff's constructive discharge claim and DENIED with respect to plaintiff's hostile work environment claim.