Opinion
1:03-cv-0801-JDT-TAB.
April 20, 2005
ENTRY ON MOTION FOR SUMMARY JUDGMENT (DKT. NO. 36)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Frannie R. Neal, brought this action under Title VII, claiming sexual harassment, retaliation and constructive discharge. She also asserts supplemental state law claims of assault, intentional infliction of emotional distress and negligent infliction of emotional distress. Defendants, Rock-Tenn Co. and David Quaife, move for summary judgment. Ms. Neal opposes the motion. The court rules as follows.
I. Background
The following facts are taken from the parties' evidentiary submissions and viewed most favorably to the Plaintiff. Where facts are disputed, the version favorable to the Plaintiff is accepted as true for summary judgment purposes. The Plaintiff, Frannie R. Neal, was employed by the Defendant Rock-Tenn Co. in an office manager capacity. The facility where she worked is a plant where Rock-Tenn engages in recycling, primarily paper products. The facility is of a fairly small scale with approximately fifteen employees at any given time, divided between ten hourly workers, and five salaried employees. From approximately July 2000 until a year later, Ms. Neal was supervised by David Quaife, the General Manager.
Ms. Neal claims Quaife subjected her to a hostile work environment beginning around November 2000 and continuing through the end of her employment at Rock-Tenn. Quaife had "pornography" on his computer that Ms. Neal observed "just about on a daily basis" (Neal Dep. at 23), "morning, afternoon, mid-afternoon, after work, [and] right before work ended." ( Id. at 24.) "Pornography" to Ms. Neal means pictures of males and females who are unclothed and in sexual positions. ( Id. at 21.) Quaife has admitted to viewing internet web sites with unclothed males and females engaging in sexual acts while at work. (Quaife Dep. at 15.) Ms. Neal observed the pornography either because Quaife would call her into his office and it was on his computer screen, or his screen would go blank and he would hit a mouse and it would appear. ( Id.) On approximately fifteen occasions, Ms. Neal was in Quaife's office and he would tell her, "Here look at this" and show her the pictures of unclothed men and women in sexually-oriented or sexually provocative poses. (Neal Dep. at 47-48.) Quaife's office had windows and his door sometimes was open so anyone walking by could look in and see his computer screen throughout the day. (Quaife Dep. at 15.)
Ms. Neal complains of two incidents when Quaife allegedly put pornographic magazines on her desk. (Neal Dep. at 93.) On the first occasion, he allegedly put a pornographic magazine, either Playboy or Playgirl, inside a manila envelope and placed it on her desk. (Neal Dep. at 24, 76-77.) On the second occasion, he allegedly put another Playboy or Playgirl on her desk or in her desk drawer. ( Id. at 24, 82-83.) Quaife admits to having placed a Playgirl on Ms. Neal's desk on one occasion. (Quaife Dep. at 11.) Ms. Neal told Quaife that she found the magazine offensive and not to place it on her desk. (Neal Dep. at 83.)
Ms. Neal also claims that on a daily basis, several times a day, Quaife would emerge from his office with an apparent erection in his pants. (Neal Dep. at 94-96; see also Giblin Aff. ¶ 5.) It was apparent to her when he was standing next to her while she was sitting at desk level. (Neal Dep. at 94.) He was clothed and did not rub up against her. ( Id.) Ms. Neal does not claim that Quaife ever inappropriately touched her or propositioned her.
In approximately February 2002, Ms. Neal told Quaife that she thought his viewing of internet websites that were sexually-oriented while at work was unprofessional, inappropriate to do at work in the sense that it wasted time, and offensive. (Neal Dep. at 49.) He responded that he did not know it was offensive to her and he would stop, but he did not stop viewing such pictures. ( Id. at 50.) He did, however, stop asking her to look at such pictures on his computer monitor. ( Id. at 48.)
Ms. Neal claims that after she complained to Quaife about his viewing pornography on his computer and as a result of her complaint, he altered the terms of her employment and she suffered an adverse employment action. As alleged adverse employment actions, she identifies four or five heated discussions with Quaife when he took her into his office and yelled at her, complaining about her work performance. (Neal Dep. at 52-53, 57 67-68, 136.) He told her, "You're not doing this right." ( Id. at 68.) Ms. Neal claims the yelling would continue for forty-five minutes and reduced her to tears. She never received a written reprimand over these instances. ( Id.) Her pay and job responsibilities remained the same. ( Id. at 53-54, 58.)
Ms. Neal testified that she believed Quaife was viewing the pornography because he derived personal satisfaction from it, not because he wanted to offend anyone. (Neal Dep. at 60.) She initially testified that his viewing activities were not directed toward her, but rather, were just an "ongoing occurrence." ( Id. at 41-42.) She later testified, though, that he was directing his activities toward her because he would show her the pictures when she would go into his office. ( Id. at 43.)
Ms. Neal also testified that Quaife's viewing of pornograpy on his computer was offensive toward her once he knew she was not comfortable with it. (Neal Dep. at 424-3; see also Neal Aff. ¶ 6.) She testified that Quaife made her feel threatened by telling her that if she reported the sexual harassment to the home office, nothing would happen and no one would believe her. (Neal Dep. at 50.) He made her feel like the home office would not do anything to him, but would do something to her — that she would lose her job. ( Id. at 51, 97.) According to Ms. Neal, in response to her complaints, Quaife would tell her that when he goes to the home office for meetings, the upper management takes him to strip clubs and upper management gives him all the addresses for pornographic web sites he was visiting. (Neal Dep. at 40, 51.)
On July 9, 2002, Ms. Neal submitted a resignation letter, which she left on Quaife's desk. (Neal Dep. at 14.) After receiving her letter, Quaife asked her to reconsider her resignation, indicating she was a valuable asset to the company. ( Id. at 91.) Ms. Neal subsequently contacted Tom Troskey, in Neal-Rock's upper management, and reported the sexual harassment and her concerns about Quaife. Specifically, she told Troskey about the two occasions when she claims Quaife placed magazines on her desk as well as about his viewing pornography on his computer. ( Id. at 91-93.) Troskey told her he would take care of the situation, he would speak to and reprimand Quaife, and he wanted her to remain with the company because she was too good of an employee to lose. ( Id.) Ms. Neal advised Troskey in a subsequent telephone conversation that she would like to reconsider her resignation with the condition that Troskey take appropriate action to prevent future sexual harassment. (Neal Aff. ¶ 19.) Troskey advised Quaife that Ms. Neal had reported sexual harassment against him. Later, Ms. Neal called Quaife back to accept his offer to return to work, but Quaife told her he had withdrawn his offer and accepted her resignation. (Neal Aff. ¶ 20; Neal Dep. at 102-03.) He indicated that he had spoken to several of her coworkers in the office and they threatened to quit if she were to return. (Neal Dep. at 103, 107; Quaife Aff. ¶¶ 19-20.)
Ms. Neal claims to have suffered from emotional distress including depression, anxiety, and embarrassment as a result of her experience at Rock-Tenn.
Ms. Neal filed a charge of discrimination on September 16, 2002. Only the box for "Retaliation" was checked in the section of the Charge for "Cause of Discrimination Based On." (Neal Dep. at 89-90 Ex. D.) Ms. Neal's charge alleges that the discrimination took place on July 9, 2002. ( Id. at 105 Ex. D.) In the "Particulars" section of the Charge, the following relevant statements appear:
I was hired May 2000 at Rock-Tenn Co. . . . I did not experience any problems until David Quaife was promoted to general Manager in either June or Jul 2001. Within two months Quaife would call me into his office and he would have sexually explicit material on his computer screen. I told him numerous times that I was not comfortable with what he had on his computer screen. However, he never stopped putting the sexual material on his computer screen and it was visible virtually every time I was in his office. He put sexual related magazines on my desk and I told him I did not appreciate the magazines being put on my desk.
The sexual material continued to a point where on Jul 9, 2002, I could not continue my employment. I prepared a resignation letter and gave it to Quaife. I also contacted the Regional Manager, Tom Troskey and informed him of my resignation and of the continual sexual harassment. Quaife contacted me the same day and told me he was tearing up my resignation and wanted me to come back to work. When I talked to Troskey, he also stated he wanted me to come back to work and stated he would address the situation. I felt that Troskey would take care of the situation and called Quaise (sic) back and told him I would return to work. Quaife then stated that he did not want me to come back to work and in effect terminated my employment.
I feel I was discriminated against by being terminated in retaliation for reporting sexual harassment in violation of Title VII. . . .
(Neal Dep. Ex. D at 1-2.)
II. Discussion
The Defendants move for summary judgment on all of the Plaintiff's claims. The court views the facts and draws all reasonable inferences from the facts in the light most favorable to the Plaintiff. See Rogers v. City of Chicago, 320 F.3d 748, 750 (7th Cir. 2003). Summary judgment is appropriate when 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). Summary judgment may be granted only if no reasonable trier of fact could find in favor of the Plaintiff. See Rogers, 320 F.3d at 752.
The Defendants contend that: (1) the Plaintiff's sexual harassment and constructive discharge claims are barred by the scope of the charge doctrine; (2) she cannot establish actionable sexual harassment; (3) she has insufficient evidence to support her constructive discharge claim; (4) she cannot prove her retaliation claim; (5) her state law claims are barred by Indiana's Workers Compensation Statute; and (6) the state law claims lack evidentiary support.
To the extent Ms. Neal seeks to hold Quaife liable under Title VII, he is entitled to summary judgment on such claims because Title VII does not impose personal liability on supervisory employees. See Gastineau v. Fleet Mortg. Corp., 137 F.3d 490, 493 (7th Cir. 1998); Williams v. Banning, 72 F.3d 552, 554 (7th Cir. 1995).
A. Scope of the Charge
As a general rule, "a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC." Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir. 2003) (holding that discrimination and harassment claims were barred because they were not reasonably related to retaliation claim as the claims involved "a separate set of incidents, conduct, and people, spanning over a period of time). An exception is made for "claims that are `like or reasonably related' to the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation of the charges." Sitar, 344 F.3d at 726; see Cheek v. Peabody Coal Co., 97 F.3d 200, 202 (7th Cir. 1996). This means that the EEOC charge and the complaint must "at a minimum describe the same conduct and implicate the same individuals." Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 (7th Cir. 2001); see also Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005).
The Defendants argue that the failure to assert harassment in a charge alleging retaliation bars a subsequent claim of harassment. The cases cited are readily distinguishable. In neither case did the plaintiff's EEOC charge allege any facts to suggest that the plaintiff was complaining about sexual harassment. See Jayne v. ABF Freight Sys., Inc., 202 F.3d 273, 1999 WL 1075159, at *2 (7th Cir. Nov. 24, 1999); Zerebnick v. Beckwith Mach. Co., 1996 WL 233763, at *5 (W.D. Pa. Mar. 7, 1996). Here, though the EEOC charge does not allege sexual harassment as a basis for the cause of discrimination, the "Particulars" section of the Charge contains facts which reasonably can be construed as alleging sexual harassment. The EEOC charge and the Complaint in this action describe the same allegedly harassing behavior — sexually explicit material on Quaife's computer screen, sexually related magazines being placed on Ms. Neal's desk — and implicate the same individual — Quaife. Thus, the sexual harassment claim alleged in the Complaint are like or reasonably related to the claims in the EEOC charge, and can be reasonably expected to grow out of an EEOC investigation of the charge. The same is true with respect to the constructive discharge claim. Thus, Ms. Neal's sexual harassment and constructive discharge claims are not procedurally barred. See Haugerud, 259 F.3d at 689.
B. Sexual Harassment
Title VII makes it unlawful for an employer to discriminate against an individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex[.]" 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of sexual harassment under a hostile work environment theory, Ms. Neal must show: (1) she was subjected to unwelcome sexual harassment; (2) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment; (3) the harassment was based on her sex; and (4) a basis for employer liability. See McPherson v. City of Waukegan, 379 F.3d 430, 437-38 (7th Cir. 2004); Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 505 (7th Cir. 2004).
A "hostile work environment is one that is `both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.'" Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463 (7th Cir. 2002) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)); see also McPherson, 379 F.3d at 438. In determining whether the alleged conduct constitutes an objectively hostile environment, the court considers "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee's work performance." Smith v. N.E. Ill. Univ., 388 F.3d 559, 566 (7th Cir. 2004) (quotation omitted); see Faragher, 524 U.S. at 787-88; McKenzie v. Milwaukee County, 381 F.3d 619, 624 (7th Cir. 2004).
The Defendants argue that the complained of conduct "merely consists of an awareness that [Ms. Neal's] immediate supervisor accessed sexually-oriented websites on a periodic basis." (Defs.' Br. Supp. at 12.) Though the Defendants contest whether Ms. Neal observed the images on Quaife's computer and protested seeing them, the record viewed most favorably to Ms. Neal supports the findings that she observed what she describes as pornography and complained to Quaife about the pictures in February 2002. The Defendants further contend, though, that Quaife never made any sexually-tinged overtures to Ms. Neal, never directed sexually-tinged language at her, never touched her, never propositioned her for sexual favors, never exposed himself to her, never threatened her, and never so much as asked her on a date. They point out that Ms. Neal concedes that Quaife viewed the sexual pictures on his computer in his own office and for his own personal gratification. Thus, the court understands them to be contending that she was not subjected to sufficiently severe or pervasive harassment and that the alleged harassment was not based on her sex.
It is unnecessary to address whether Ms. Neal can show that the alleged harassment was unwelcome and that she was subjectively offended by it.
"Title VII proscribes only workplace discrimination on the basis of sex, race, or some other status that the statute protects; it is not a `general civility code' designed to purge the workplace of all boorish or even all harassing conduct." Berry v. Delta Airlines, Inc., 260 F.3d 803, 808 (7th Cir. 2001) (citing Spearman v. Ford Motor Co., 231 F.3d 1080, 1086 (7th Cir. 2000) (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)); see also McKenzie, 381 F.3d at 624 ("Title VII is not a general code of workplace civility, nor does it mandate `admirable behavior' from employers."). "[I]n the context of a sexual discrimination charge based on a hostile work environment, `[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Berry, 260 F.3d at 808 (quoting Oncale, 523 U.S. at 80 (citation omitted)); see Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004) (employee could not "base a hostile environment claim upon [coworkers'] vulgar language because, at most, they are crude individuals who treated everyone poorly"); Holman v. State of Indiana, 211 F.3d 399, 403 (7th Cir. 2000) (dismissing claims of husband and wife who alleged that their supervisor sexually harassed both of them by requesting sexual favors). Title VII does not prohibit inappropriate conduct that is inflicted on both sexes or inflicted regardless of sex. Berry, 260 F.3d at 808; Holman, 211 F.3d at 403. Therefore, an employer cannot be held liable for a hostile work environment unless the hostility is motivated by gender. Berry, 260 F.3d at 809-11 (holding harassment not actionable as sexual harassment under Title VII where plaintiff had no evidence that any harassment was based on her gender); Spearman, 231 F.3d at 1085-86 (holding that employer was not liable under Title VII for sexually explicit insults directed at employee by coworkers where the insults were meant to "express [the coworkers'] acrimony over work-related disputes" with the employee and "not to harass him because he is a man").
The record does not reasonably suggest any harassment based on Ms. Neal's gender. The record is devoid of any evidence that Quaife's conduct took the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Ms. Neal complains about the following conduct by Quaife: his viewing internet pornography, his displaying the pornography to her, two instances in which he allegedly placed a Playboy or Playgirl on or in her desk, his daily erections, and a five instances of alleged verbal abuse. Ms. Neal testified that on fifteen occasions over the course of several months, Quaife asked her to look at the pornography on his computer screen. Once she told him it made her uncomfortable, he no longer asked her to view it, though she still observed it as it was unavoidable — anyone could see it through his office door and window. Nothing in the record suggests that Quaife's erections were directed at Ms. Neal. Instead, the evidence is that he emerged from behind close doors with an obvious erection several times a day. Thus, anyone outside his office at those times could have seen his erections. As for the alleged verbal abuse, this conduct occurred only a handful of times and in the context of Quaife complaining about Ms. Neal's work performance. There is nothing about what was said to suggest any sexual overtones or that Quaife yelled at Ms. Neal because of her gender. In fact, Ms. Neal argues that he yelled at her because she complained about his viewing pornography. This dispels any notion that the alleged verbal abuse was because of her gender. See Berry, 260 F.3d at 809 (alleged harassment not actionable sexual harassment where record suggested that all incidents were meant as retaliation for complaints of harassment). Finally, placing a Playboy or Playgirl on a coworker's desk on two occasions over the course of several months, though inappropriate, is not offensive enough to create a objectively hostile work environment — even in the context of Quaife's other offensive behavior.
Though Ms. Neal states that Quaife intended to make her feel uncomfortable, her assertion is conclusory and she offers no factual basis to support her conclusion as to his intent. Moreover, she has agreed that Quaife viewed the pornography for his own personal satisfaction and even testified that, not because he wanted to offend anyone. It is undisputed that once Ms. Neal told him she thought such an activity was inappropriate and offensive, he never again asked her to look at the pictures on his computer screen. Quaife's daily viewing of pornography on the internet affected everyone in the workplace, regardless of their sex. Thus, this inappropriate and offensive conduct cannot establish harassment based on Ms. Neal's gender. See, e.g., McKenzie, 381 F.3d at 625; Berry, 260 F.3d at 810-11.
Furthermore, while Quaife's conduct is offensive, it is not so offensive as to constitute actionable sexual harassment. Most of Quaife's conduct about which Ms. Neal complains — his viewing of pornographic internet sites and emerging from his office with an obvious erection — was not directed at her. He simply did these things where she (and others) could observe them. Such harassment is considered less objectionable than harassment directed at the plaintiff. See McKenzie, 381 F.3d at 624 (noting that several of the incidents the plaintiff relied on to support her claim involved other employees in the office); Smith, 388 F.3d at 567 ("There is no hostile work environment where as here, the harassment about which [plaintiff] complains was not directed at her."). Quaife never made any sexual advances toward Ms. Neal, never asked for any sexual favors, never touched her inappropriately, and there is no evidence that he ever used obscene or language, gestures or behavior.
The court finds that even when the record is viewed most favorably to Ms. Neal, it fails to create a genuine issue as to whether she was subjected to sexual harassment in violation of Title VII. Therefore, Rock-Tenn should be granted summary judgment on the sexual harassment claim.
Thus, the court need not consider whether Rock-Tenn is entitled to the affirmative defense set forth in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
C. Constructive Discharge
Ms. Neal contends that she was constructively discharged. An employer may be held liable for a constructive discharge resulting from sexual harassment. Pa. State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342, 2352 (2004); Robinson v. Sappington, 351 F.3d 317, 336 (7th Cir. 2003), cert. denied, 124 S. Ct. 2909 (2004). To show that a hostile work environment resulted in a constructive discharge, the plaintiff must show that the working conditions were so intolerable that a reasonable person in the plaintiff's position would have felt compelled to resign. See Suders, 124 S. Ct. at 2347; McPherson v. City of Waukegan, 379 F.3d 430, 440 (7th Cir. 2004).
Ms. Neal has not raised a reasonable inference that her working conditions were so intolerable that a reasonable person would have felt compelled to resign. As this court has found, Ms. Neal does not raise a genuine issue of material fact as to whether she was subjected to a hostile work environment in violation of Title VII. Since "[t]he working conditions for constructive discharge must be even more egregious than the high standard for hostile work environment," McPherson, 379 F.3d at 440 (quotation omitted), it follows that Ms. Neal has not raised a triable issue as to her constructive discharge claims. Therefore, Rock-Tenn will be granted summary judgment on the constructive discharge claim.
During the week of June 20, 2002, Ms. Neal contemplated quitting work because of a situation with co-worker Sydria Jordan. (Neal Dep. at 62-64.) When she told Quaife about this, she did not mention his viewing pornography on the internet or any other harassment. ( Id. at 62, 65.) That she did not claim on June 20 that these things motivated her to quit further supports the conclusion that she did not find the work environment created by Quaife's allegedly harassing conduct to be intolerable.
D. Retaliation
The Plaintiff alleges retaliation in violation of Title VII. See 42 U.S.C. § 2000e-3(a). She has two avenues of proving retaliation: the direct method and the indirect method. Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005); Davis v. Con-Way Transp. Cent. Exp., Inc., 368 F.3d 776, 786-88 (7th Cir. 2004); Rogers v. City of Chi., 320 F.3d 748, 753 (7th Cir. 2003). Under the direct method, Ms. Neal must present direct or circumstantial evidence of (1) a statutorily protected activity; (2) an adverse employment action; and (3) a causal connection between the two. Davis, 368 F.3d at 786; Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 728 (7th Cir. 2003); see also Mannie, 394 F.3d at 983 (explaining that circumstantial evidence may be used to raise an inference of discrimination under the direct method of proof). If her evidence is contradicted, the case must be tried unless the Defendants present unrebutted evidence that the adverse employment action would have been taken even if there was no retaliatory motive. Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir. 2003); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989) ("once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role") (footnote omitted). The Defendants contend that the Plaintiff has no direct evidence of retaliation. Ms. Neal asserts that using the direct method, she can prove two incidences of retaliation.
She does not attempt to proceed under the indirect method of proof, so the court's analysis is limited to the direct method.
Ms. Neal first complains that she was retaliated against by Quaife after complaining to him about sexually explicit materials in the workplace and threatening to report or file charges against him. She claims she suffered adverse employment actions based on the following: (1) Quaife dismissed her complaints with threats of termination of her employment, (2) Quaife subjected her to verbal abuse, and (3) she was forced to resign because the harassment became intolerable. An unfulfilled threat of termination that results in no material harm is not an adverse employment action under Title VII. See, e.g., Hottenroth v. Village of Slinger, 388 F.3d 1015, 1030 (7th Cir. 2004); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir. 1996). The four or five instances of "verbal abuse," which arose out of work-related issues, though evidencing a lack of self-control and professionalism on the part of Quaife, are insufficient to establish an adverse employment action. See Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (holding employee did not establish adverse employment action based on allegations that supervisors yelled at her, told her she was a poor manager, gave her poor evaluations, and chastised her in front of customers, among others); Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997) (manager's conduct in yelling at employee during meeting not adverse employment action); see also Oest v. Ill. Dep't of Corr., 240 F.3d 605, 612-13 (7th Cir. 2001) (indicating that an adverse employment under Title VII "must be materially adverse to be actionable" and giving as examples "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities"). And, as addressed above, Ms. Neal has insufficient evidence to prove that she was constructively discharged.
For her second act of retaliation, Ms. Neal claims that Quaife had rejected her resignation and offered her reemployment, but withdrew his offer after learning she had reported him to Troskey. It is uncontested that Ms. Neal's reporting to Troskey of Quaife's alleged sexual harassment constitutes protected activity. The Defendants argue that since Ms. Neal resigned, there was no adverse employment action. However, when the record is viewed most favorably to Ms. Neal it raises a reasonable inference of an adverse action against her. The record establishes that Ms. Neal turned in a resignation letter, but Quaife initially did not accept her resignation. Instead, he asked her to reconsider, telling her she was a valuable employee. The record viewed most favorably to the Plaintiff also establishes that Troskey likewise asked her to reconsider. Ms. Neal did reconsider and contacted Quaife to advise him she would return to work. However, Quaife withdrew his offer of employment and accepted her resignation, effectively ending her employment with Rock-Tenn. Thus, the record raises a reasonable inference that Ms. Neal suffered an adverse action.
Ms. Neal can show the requisite causal connection between her complaint of sexual harassment to Troskey and her termination. "The key inquiry in determining whether there is a causal connection under the direct method is whether [the decisionmaker] was aware of the allegations of discrimination at the time of [his] decisions." Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004). Ms. Neal's testimony establishes that she told Quaife she had spoken to Troskey who said he would address her sexual harassment complaints against Quaife. Importantly, according to Ms. Neal's deposition testimony and affidavit, it was only after she told Quaife she reported him to Troskey that Quaife said there was no longer a valid offer for her to return to work. Ms. Neal does not need to rely on Troskey's memo to raise a genuine issue as to these facts; her own testimony suffices to show Quaife's knowledge that she reported him for sexual harassment, and that he had this awareness before he accepted her resignation and withdrew his offer of employment.
Thus, the Defendants' implicit request to strike Plaintiff's hearsay and non-relevant submissions regarding the chronology and substance of conversations between Troskey and Quaife ( see Defs.' Reply Br. at 9 n. 1) is denied.
While the Seventh Circuit has said that mere temporal proximity between the protected activity and the allegedly retaliatory adverse action is insufficient in and of itself to create a triable issue, Contreras v. Sunkist Corp., 237 F.3d 756, 765 (7th Cir. 2001) (evidence that plaintiff was terminated approximately one month after filing EEOC charge was insufficient to show causation), it also recognizes that temporal proximity can raise a reasonable inference of causation. See Haywood, 323 F.3d at 532; Lalvani v. Cook County, Ill., 269 F.3d 785, 791 (7th Cir. 2001). The evidence raises a reasonable inference that Quaife accepted Ms. Neal's resignation on the very heels of learning of her protected activity — the same day, if not immediately. Thus, even if timing was Ms. Neal's only evidence of causation, this is one of those rare cases in which timing by itself would suffice to raise an inference of causation. However, Ms. Neal offers additional evidence, including that Quaife initially had asked her to reconsider, telling her she was a valued employee, which also supports a reasonable inference of causation. Further, the record contains no documentation or other evidence such as a reprimand, warning or discipline to substantiate that Ms. Neal had such a sour relationship with her coworkers as the Defendants contend.
They claim that Quaife was justified in accepting Ms. Neal's resignation based on his poll of the remaining office staff who threatened to quit if she was allowed to return. However, there is a genuine issue of material fact regarding when in relation to learning that Ms. Neal had reported him to Troskey, Quaife conducted the alleged poll. Quaife states merely that he consulted the office employees after talking with Ms. Neal on July 9. (Quaife Aff. ¶ 19.) Beyond the timing of the poll, there is a genuine issue of material fact as to whether Ms. Neal's resignation would have been accepted even if Quaife had no retaliatory motive. Quaife denies that his decision to accept Ms. Neal's resignation was impacted by Ms. Neal's reporting of his internet and other activities. ( Id. ¶ 20.) But his statements must be recognized as extremely self-serving. Though their self-serving nature alone would not entitle Ms. Neal to a trial, the timing of Quaife's decision right on the heels of his learning of Ms. Neal's report to Troskey combined with the evidence that both Troskey and Quaife requested Ms. Neal to stay because she was a valuable employee, and the absence of any documentation of an intra-office personality conflict, render both the poll and the intra-office conflict rationale reasonably suspect. At the least, even accepting the poll, the evidence, when viewed in Ms. Neal's favor, as it must be, raises triable issues as to whether Quaife would have accepted her resignation absent a retaliatory motive. Therefore, the motion for summary judgment is denied as to the retaliation claim against Rock-Tenn.
E. State Law Claims
Plaintiff asserts state law claims of assault, intentional infliction of emotional distress and negligent infliction of emotional distress against both Defendants. The Defendants respond that these claims are barred by the exclusivity provision of Indiana's Worker's Compensation Act (the "Act") and lack a substantive basis. The Act precludes an employee from pursuing in court certain claims where the employee seeks relief for "personal injuries or death" under the Act. Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1288 (Ind. 1994). The Act does not bar claims for which the plaintiff does not seek relief for physical injury, disability or impairment. Id.; see also McCreary v. Libbey-Owens-Ford Co., 132 F.3d 1159, 1166 (7th Cir. 1997) (holding Act did not bar intentional infliction of emotional distress claim). Although the Plaintiff's Complaint seeks a judgment against Defendants for physical injuries, it is apparent that she does not seek damages for physical injuries. She has offered no evidence of any physical injuries. To the extent that Ms. Neal seeks damages for nonphysical injuries, the Act does not bar her state law claims. See Tacket v. Gen. Motors Corp., Delco Remy Div., 93 F.3d 332, 335 (7th Cir. 1996) ("On remand, Tacket may present evidence of any nonphysical injuries he suffered, but if he wishes to recover for any physical injuries, he must do so before the Indiana Worker's Compensation Board."). Because Ms. Neal does not seek to recover damages for any physical injuries (or disability or impairment), the Act's exclusivity provision does not bar her state law claims.
However, to the extent Ms. Neal seeks damages for personal injuries within the meaning of the Act, her state law claims against Rock-Tenn are barred by the Act. The Act's exclusivity provision is limited to personal injury or death which occurs "by accident." Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271, 1273 (Ind. 1994). An injury occurs "by accident" "only when neither the sufferer nor the employer intends it to result." Id. at 1274 (footnote omitted). The employer, not merely a supervisor, manager or foreman, must intend the injury. Id. To show that the employer intended the injury, "a plaintiff must show either that the corporation is the tortfeasor's alter ego or that the injuries were the intended product of a corporate policy." Tacket, 93 F.3d at 334-35. Ms. Neal offers no such evidence. An "injury which stems from the intentional act of a co-worker is an injury `by accident.'" Baker, 637 N.E.2d at 1275 n. 6. Thus, to the extent Ms. Neal seeks recovery for personal injuries within the meaning of the Act, her claims for assault and intentional infliction of emotional distress against Quaife would be barred. As noted, though, the court does not understand her to be asserting claims for personal injuries within the meaning of the Act.
However, to maintain a claim for negligent infliction of emotional distress, a plaintiff must show that she suffered a direct physical impact. See Bader v. Johnson, 732 N.E.2d 1212, 1221 (Ind. 2005) (stating that "[a]s modified, the [impact] rule still requires physical impact"); Powdertech, Inc. v. Joganic, 776 N.E.2d 1251, 1263-64 (Ind.Ct.App. 2002) (holding that in being discharged employee did not sustain the direct physical impact required to maintain an action for negligent infliction of emotional distress); see also Ketchmark v. N. Ind. Pub. Serv. Co., 818 N.E.2d 522, 524 (Ind.Ct.App. 2004) (rejecting argument that proof of "direct involvement" without the requirement of impact upon or threat of injury to a person is sufficient to prove a claim for negligent infliction of emotional distress). Ms. Neal has pointed to no evidence that she suffered a direct physical impact or physical change as a result of the alleged negligent infliction of emotional distress. Therefore, she cannot prevail on her negligent infliction of emotional distress claim and summary judgment will be granted the Defendants on this claim.
Regarding the claim for intentional infliction of emotional distress, Ms. Neal offers no evidence to establish that Rock-Tenn intended to cause her emotional distress. Indiana courts have rejected a respondeat superior theory of liability for intentional infliction of emotional distress claims. See Holbrook v. Lobdell-Emery Mfg. Co., 219 F.3d 598, 601 (7th Cir. 2000); Baker v. Westinghouse Elec. Corp., 637 N.E.2d 1271, 1275 (Ind. 1994) ("[A]n intentional tort committed by a supervisor, manager or foreman could subject that individual to tort liability but would not necessarily expose the employer to liability."). To show that the employer intended the injury, "a plaintiff must show either that the corporation is the tortfeasor's alter ego or that the injuries were the intended product of a corporate policy." Tacket, 93 F.3d at 334-35. Ms. Neal has offered no evidence that Rock-Tenn is Quaife's alter ego or that Rock-Tenn had a policy of harassing employees or of discharging employees who complained about harassment. She therefore cannot prevail on her intentional infliction of emotional distress claim against Rock-Tenn.
Moreover, the Defendants are entitled to summary judgment on the intentional infliction of emotional distress claims because the evidence does not meet the rigorous requirements to prove such a tort. The plaintiff must prove that the defendant engaged in "extreme and outrageous" conduct which exceeds "all possible bounds of decency" and is "regarded as atrocious, and utterly intolerable in a civilized community." Creel v. I.C.E. Assocs., Inc., 771 N.E.2d 1276, 1282 (Ind.Ct.App. 2002) (quoting Restatement (Second) of Torts § 46, cmt. d). "Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'" Id. None of Quaife's conduct including his daily viewing of pornography on the internet, placing of two sexually-oriented magazines on Ms. Neal's desk, emerging from his office with an apparent erection, and accepting her resignation, would lead an average member of the community to exclaim "Outrageous!" See Holbrook, 219 F.3d at 601-02 (refusing to allow employee to work overtime and denying his bid to move to a new position did not meet standard for extreme and outrageous conduct); Harriston v. Chicago Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (affirming district court's dismissal of employee's intentional infliction of emotional distress claim under Illinois law against her employer because employer's conduct, including discriminating against her, demoting her, falsely accusing her of poor job performance, threatening her with discipline, monitoring her telephone calls, having her vehicle damaged and vandalized while on company property, did not "reach the level of extreme and outrageous conduct needed to establish a claim for intentional infliction of emotional distress"). This is not to suggest that a reasonable person would not find Quaife's conduct offensive — most would. However, his conduct could not be regarded as atrocious and utterly intolerable in a civilized community. Accordingly, summary judgment will be granted the Defendants on the intentional infliction of emotional distress claim.
Illinois law on intentional infliction of emotional distress is similar to Indiana law as both require extreme and outrageous conduct. See Doe v. Calumet City, 641 N.E.2d 498, 506 (Ill. 1994)
Though a subheading of Ms. Neal's brief references her assault claim, she advances no arguments and points to no evidence to establish assault. The court therefore treats her as having abandoned that claim. In any event, an assault creates an apprehension of a harmful or offensive contact. See West v. LTV Steel Co., 839 F. Supp. 559, 562 (N.D. Ind. 1993) (citing Fields v. Cummins Employees' Fed. Credit Union, 540 N.E.2d 631, 640 (Ind.Ct.App. 1989)). Ms. Neal offers insufficient evidence to establish an apprehension of harmful or offensive contact. Therefore, the Defendants will be granted summary judgment on the assault claim.
III. Conclusion
The Defendants' Motion for Summary Judgment (dkt. # 36) is denied with respect to the Title VII retaliation claim against Rock-Tenn but will be granted in all other respects. Judgment will be entered following disposition of the remaining claim.
ALL OF WHICH IS ENTERED.