Musa-Muaremi v. Florists' Transworld Delivery Inc. (FTD)

Filing 169

Opinion and Order Signed by the Honorable Joan H. Lefkow on 10/5/2011:Mailed notice(mad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NADIA MUSA-MUAREMI,
Plaintiff,
v.
FLORISTS’ TRANSWORLD DELIVERY,
INC. (FTD),
Defendant.

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No. 09 C 1824
Judge Joan H. Lefkow

OPINION AND ORDER
Plaintiff Nadia Musa-Muaremi filed her first amended complaint against Florists’
Transworld Delivery, Inc. (“FTD”) alleging claims for quid pro quo sexual harassment, hostile
work environment, sex discrimination, and retaliation in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).1 Before the court is FTD’s
motion for summary judgment on each of the claims set forth in the complaint. Musa-Muaremi
has filed a cross-motion for summary judgment on FTD’s affirmative defense to vicarious
employer liability. For the following reasons, FTD’s motion [#138] will be granted in part and
denied in part and Musa-Muaremi’s motion [#143] will be denied.2

1

Plaintiff’s first amended complaint asserts a single count titled “sexual harassment and gender
discrimination, retaliation and constructive discharge under Title VII including a claim of quid pro quo.”
As the court explained in its order dismissing Count II of plaintiff’s original complaint, constructive
discharge is not a separate claim under Title VII. See Dkt. #24. Accordingly, the court understands
plaintiff to assert four claims: quid pro quo harassment, hostile work environment, sex discrimination,
and retaliation.
2

This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 2000e5(f)(3). Venue is proper under 28 U.S.C. § 1391(b) because the parties reside in this district and the
events that gave rise to Musa-Muaremi’s claims occurred in this district.

SUMMARY JUDGMENT STANDARD
Summary judgment obviates the need for a trial where there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). To determine whether any genuine fact exists, the court must pierce the pleadings and
assess the proof as presented in depositions, answers to interrogatories, admissions, and
affidavits that are part of the record. Id. While the court must construe all facts in a light most
favorable to the non-moving party and draw all reasonable inferences in that party’s favor,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986),
where a claim or defense is factually unsupported, it should be disposed of on summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106 S. Ct. 2548, 91 L. Ed. 2d 265
(1986). The party seeking summary judgment bears the initial burden of proving there is no
genuine issue of material fact. Id. at 323. In response, the non-moving party cannot rest on bare
pleadings alone but must use the evidentiary tools listed above to designate specific material
facts showing that there is a genuine issue for trial. Id. at 324; Insolia v. Philip Morris Inc.,
216 F.3d 596, 598 (7th Cir. 2000).
BACKGROUND3
Musa-Muaremi was employed by FTD from December 4, 2004 to May 21, 2007. On
September 20, 2006, she was promoted to an Assistant Floral Buyer position in FTD’s Fresh
Flowers Department, where she worked under the supervision of Michael Martin. Martin was
the Director of Fresh Flowers. On January 8, 2007, Musa-Muaremi was promoted to the

3

The facts set forth in this section are derived from the statements of fact and supporting
documents submitted by the parties to the extent they comport with Local Rule 56.1. See Minute Order
dated Oct. 5, 2011. They are taken in the light most favorable to Musa-Muaremi.

2

position of Logistics Analyst, also in the Fresh Flowers Department. As a Logistics Analyst,
Musa-Muaremi was supervised by Andrew Fordyce, the Fresh Flowers Procurement and
Logistics Manager. Fordyce’s conduct gives rise to the instant complaint.
As Musa-Muaremi’s supervisor, Fordyce assigned her daily work assignments and
approved requests for time off. Fordyce did not have authority to discipline, hire, or terminate
employees. That authority resided with Martin, and Martin could only do so with the approval
of the Human Resources Department. Fordyce could, however, make recommendations to
Martin regarding disciplinary action. Fordyce could also make recommendations as to who
should receive bonuses, subject to the approval of FTD’s Chief Financial Officer and Chief
Executive Officer and President. Musa-Muaremi testified that Fordyce frequently stated that he
had the power to hire and fire and discipline employees and that he threatened her and other
employees with discipline and termination. Pl.’s Ex. 1 ¶¶ 145, 149; Def.’s Ex. 1 at 171.4
Michelle Fryer, a former FTD employee, similarly testified that Fordyce frequently threatened
employees with termination. Pl.’s Ex. 26 ¶ 27. Aimee Bachman, another employee, also
testified that Fordyce had the authority to fire and discipline employees. Pl.’s Ex. 30 at 109–110.
I.

Fordyce’s Conduct Prior to May 1, 2007
As related by Musa-Muaremi and her witnesses, Fordyce engaged over an extended

period of time in vulgar, harassing behavior towards Musa-Muaremi and others. Musa-Muaremi
asserts that Fordyce behaved inappropriately as early as the summer of 2006, when she
4

FTD argues that paragraph 145 of Musa-Muaremi’s affidavit should be stricken because it is
inconsistent with her deposition testimony. At her deposition, Musa-Muaremi was asked, “Did Mr.
Fordyce ever threaten your job if you didn’t engage in any sexual conversations with him?” She
responded, “There was no direct threat.” Def.’s Ex. 1 at 231–232. This testimony is not inconsistent with
her affidavit, wherein she simply asserts that “Fordyce frequently threatened me and other employees
with termination, [sic] discipline.” Pl.’s Ex. 1 ¶ 145.

3

interviewed for the Assistant Floral Buyer position. Musa-Muaremi testified that Fordyce
interviewed her and that he asked whether she was married or single. When Musa-Muaremi
stated that she was married, Fordyce stated, “Now, you don’t plan on getting pregnant anytime
soon, do you?” Def.’s Ex. 1 at 173. Musa-Muaremi told Fordyce that she didn’t think he was
supposed to ask that type of question. Fordyce responded, “You take things too seriously. It
won’t work in this department.” Id. at 174.
When Musa-Muaremi started work as a Logistics Analyst, she worked in a team of six
women who were supervised by Fordyce. Three of the women received special treatment from
Fordyce. He referred to these three employees as his “minions” because, in Musa-Muaremi’s
opinion, they did “whatever he asked them to.” Id. at 154. Fordyce allowed these employees to
take undocumented time off and work from home. He also took them out for lunches and
cocktails.
Beginning in February 2007, Fordyce began to single Musa-Muaremi out for negative
attention. Fordyce yelled at Musa-Muaremi in front of other employees. He also pulled her
aside from other employees by snapping his fingers, pointing his finger at her, stating, “You,”
and then pointing to where he wanted her to go. Fordyce called Musa-Muaremi a bitch on
several occasions. He also referred to other female employees as “bitches.” In February or
March 2007, Musa-Muaremi told Fordyce that his use of the word bitch was not appropriate.
Fordyce responded, “You know you’re a bitch.” Pl.’s Ex. 1 ¶ 17.
In February 2007, Musa-Muaremi met with Martin because she had not received a raise
at the beginning of the fiscal year. Martin told her that raises hadn’t been provided due to
budgetary constraints. He then said, “Let me ask you a question: Are you starving – are you

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starving to put food on your table?” Def.’s Ex. 1 at 388. Musa-Muaremi responded, “Wow. Do
I need to be?” Martin told Fordyce about this conversation, and Fordyce started to mock MusaMuaremi. Fordyce told her that because she was a woman she could not be the “breadwinner” in
her family and that usually men get promotions and raises. Id. at 388. Fordyce began to repeat
the phrase, “Are you starving to put food on your table?” Other employees told Musa-Muaremi
that this was a line from a recruiting ad for Heavenly Bodies strip club. When Fordyce realized
that Musa-Muaremi knew what he was referring to, he started whispering “Heavenly Bodies”
when he saw Musa-Muaremi. Later, when a female employee in the sales team asked Fordyce if
he could provide change for a $20 bill, Fordyce told the employee to ask Musa-Muaremi because
“[she] has a lot of singles . . . you know.” Id. at 389. The teasing continued “at random” for
weeks. Id. at 390.
In March 2007, Fordyce made two offensive comments while he and Musa-Muaremi
were on a business trip in Miami. Fordyce told Musa-Muaremi that if she wasn’t able to find
cab to take her to the airport early in the morning she could “flash a taxi” to get a free ride. Id. at
223. He also asked whether she was “physically, emotionally and sexually happy” when they
were driving in a car together. Id.
FTD employees worked in a cubicle environment and Musa-Muaremi’s desk was not far
from Fordyce’s. As a result, she frequently heard him swear and use crass language. Fordyce
also engaged in sexually explicit phone calls while he was at his desk. On one occasion, MusaMuaremi overheard Fordyce talking on the phone with a woman who Musa-Muaremi believed to
be his girlfriend. Fordyce engaged in a graphic discussion of oral sex, sex toys, and sex with
multiple partners. Musa-Muaremi passed Fordyce a note that said that she could hear him, and

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then walked away. On another occasion, Musa-Muaremi told Fordyce that she didn’t think his
conversation was appropriate and Fordyce told her to “go buy earplugs.” Id. at 234. Sometime
in March 2007, Musa-Muaremi overheard Fordyce talking on the phone with a female recruiter
and asking her about a “rabbit” vibrator and whether she had favorite sexual positions. Id. at
223–24.
Fordyce told Musa-Muaremi that she should try to lose weight “because the Coke bottle
body is out of style.” He suggested that she go to Weight Watchers meetings with two other
female employees. Fordyce also told Musa-Muaremi to stop eating a piece of candy because it
was full of calories.
Musa-Muaremi testified that Fordyce frequently used the term “rape” in unnecessary
contexts, as in “[L]ook at these prices on here that Queens Flowers is charging us . . . They are
raping us.” Id. at 411. Fordyce stopped making these comments after Musa-Muaremi and
Martin told him that his language was offensive. Fordyce also told Musa-Muaremi that she
could not go on a business trip to Bogota, Colombia because she would probably be kidnapped
and “get raped multiple times.” Id. at 417.
On one occasion, after a female employee had been working late at the office, Fordyce
told a group of employees that she must have been working late “because she has no life. Her
boyfriend probably doesn’t want to sleep with her. Who would? She’s a whale.” Id. at 409.
Musa-Muaremi also overheard Fordyce tell another female employee that she should start saving
money for a breast augmentation procedure. Id. at 391.5

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FTD argues that Musa-Muaremi testified that she did not directly overhear this comment. From
her testimony, however, it appears that she was referring to a different conversation with Fordyce when
she stated that she could not provide details because she was not present. Def.’s Ex. 1 at 391–92.

6

Musa-Muaremi heard Fordyce state that he wanted to hire a physically attractive woman
from another department to be a sales manager because she was “a knockout” and “a 10.” Id. at
413. Fordyce became upset when the attractive woman was not hired into the department. The
woman who was eventually hired for the sales position used a cane. Musa-Muaremi heard
Fordyce refer to the new hire as “the cripple.” Id. at 413. Musa-Muaremi told Fordyce that she
didn’t think this comment was appropriate. Fordyce responded, “She’s useless because her legs
can’t go up in the air.” Id.
On another occasion, Fordyce wanted to decorate one of his favorite employee’s cubicles
with confetti for her birthday. Some of the other women in the department told him that the
confetti would be difficult for the cleaning lady to vacuum from the floor. Fordyce responded,
“Well, I have something for her to suck on.” Id. at 414.
Fordyce inappropriately referred to another female employee as a “whore.” MusaMuaremi was talking to the employee’s seven-year-old daughter, who was visiting the office.
Fordyce stood near Musa-Muaremi’s desk and said that he “wonder[ed] if she [was] going to end
up a whore like her mother.” Id. at 418. Musa-Muaremi believed that Fordyce was referring to
the fact that the girl’s mother had been a “teenaged mother.” Id. at 417.
In April 2007, Musa-Muaremi heard Fordyce tell two other female employees who were
on a team call to stop “rolling around in bed and playing around with [your] boyfriends.” Id. at
270.
Fordyce also swore and raised his voice at two male employees, Brad Jensen and James
Majka. Fordyce did not like Jensen and referred to him more than once as a “fucking idiot” and

7

called him fat. Fordyce would repeatedly punch his fist into his hand, apparently in anger or
frustration, when he was around male and female employees.
II.

Complaints About Fordyce Prior to May 1, 2007
A.

FTD’s Sexual Harassment Policy

FTD’s Employee Handbook states that harassment based on gender is prohibited and that
“abusive conduct or harassment” includes “derogatory comments, slurs, statements, jokes, or
other objectionable behavior based on upon a person’s race, age, sex, color, religion, disability,
ethnicity, or other protected status.” Def.’s Ex. 7 at 27. Employees who believe they have been
subjected to sexual harassment are directed to report the offensive conduct immediately to their
manager or to the Human Resources Department. Id. at 28. A manager who receives a
complaint of sexual harassment should bring the complaint to the attention of the Human
Resources Department. FTD will undertake an impartial investigation “immediately” after a
complaint has been made. Id. Retaliation of any kind is prohibited under FTD’s harassment
policy and employees are directed to report any allegedly retaliatory act to their manager or to
the Human Resources Department. Id. FTD also has an informal “open-door policy” which
provides that an employee can raise any issue with the Human Resources Department without
going to a manager.
All new employees, including Fordyce, reviewed FTD’s anti-harassment policy during
orientation. It is undisputed that Musa-Muaremi was aware of FTD’s anti-harassment policy and
that she knew that she could make complaints regarding sexual harassment or gender
discrimination to the Human Resources Department or to her manager. She also took college
level human resources courses while she was employed at FTD. As part of her course work she

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learned about Title VII and that an employee can make a sex discrimination complaint to her
employer’s human resources department.
B.

Musa-Muaremi’s Complaints

Musa-Muaremi testified that she first told Angie Weld, the Manager of Human
Resources, about Fordyce’s alleged misconduct in August of 2006. She testified that she told
Weld about Fordyce’s comments during her interview for the Assistant Floral Buyer position and
that Weld agreed that the comments were inappropriate. Weld offered to talk to Fordyce about
his behavior, but Musa-Muaremi asked her not to say anything at that time. Musa-Muaremi also
told Martin about Fordyce’s interview questions and Martin responded, “[T]hat’s his
personality.” Def.’s Ex. 1 at 171.
In November 2006, Musa-Muaremi told Weld that Fordyce was very loud in the office
and that he had told her that people who worked for “dot coms” have “sticks up their but[t]s.”
Id. at 169. Musa-Muaremi stated that she was offended by this comment because she had
previously worked for an internet company.
In early January 2007, when Musa-Muaremi met with Martin to have her midyear review
for her work as an Assistant Floral Buyer, Musa-Muaremi expressed some misgivings about the
possibility of working under Fordyce in the future. Musa-Muaremi told Martin that she had
concerns about working under Fordyce because she had a “bad relationship” with him and he
didn’t treat the other employees well. Id. at 218.
At her deposition, Musa-Muaremi testified that in early February 2007, after she started
working under Fordyce, she told Martin that Fordyce had called her a bitch. In her affidavit, she
further asserts that she “complained to Martin on several occasions” in February, March, and

9

April 2007 and that each time Martin told her, “You need to manage him.” Pl.’s Ex. 1 ¶¶ 51–54.
Musa-Muaremi does not describe the substance of her complaints.
Musa-Muaremi also testified that, on two different occasions, she complained to Martin
about Fordyce’s sexually explicit phone calls. After the second complaint, Martin told MusaMuaremi that he had talked to Fordyce in the past about being “more soft spoken” and that he
had already discussed the inappropriate conversation with Fordyce. Id. ¶ 59.6
Sometime in March 2007, Musa-Muaremi was approached by Robert Meiner, another
manager at FTD, who expressed concern about things he had heard about Fordyce’s conduct
towards Musa-Muaremi. Def.’s Ex. 1 at 351. Meiner suggested that Musa-Muaremi report
Fordyce’s conduct to the Human Resources Department. There is no evidence that Meiner
approached anyone in the Human Resources Department on Musa-Muaremi’s behalf.
Musa-Muaremi testified that she “went to HR several times” to complain about
Fordyce’s behavior after she started working as a Logistics Analyst. She could not remember
her specific complaints, but she was certain that she had mentioned that Fordyce “ma[de]
comments” and used “the B word.” Def.’s Ex. 1 at 225.
On April 25, 2007, Musa-Muaremi told Amy Majka, the Director of Human Resources,
that Fordyce was “crass and sexist” and that her complaints to Martin had “fall[en] on deaf ears.”
Id. at 227. Musa-Muaremi stated that “some things [had] happened” while she was with Fordyce
in Miami. Id. at 228. She did not provide specific details. Musa-Muaremi also told Majka that
Fordyce “made comments” and was “overly sexual with some of the girls in the office.” Id. at

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Martin, on the other hand, testified that Musa-Muaremi never complained to him about any
sexual comments, incidents of sexual harassment, or incidents regarding sex-based conversations prior to
May 1, 2007. Def.’s Ex. 12 ¶¶ 10–14.

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227. Majka told Musa-Muaremi to document Fordyce’s behavior in the future and that she “was
going to look into it.” Id. at 229–230. Musa-Muaremi told Majka that she “was going to appeal
to Michael [Martin] one last time because [she] couldn’t tolerate it any more and [she] wasn’t the
only one experiencing all of this.” Id. at 229. Musa-Muaremi did not tell Majka that she was
making a sexual harassment complaint. Id. at 230.
C.

Cindy Rapshus’s Complaints

Cindy Rapshus started work at FTD in January of 2007 as Vice President of Business
Development. Although Rapshus did not work in the same department as Musa-Muaremi, her
desk was near Musa-Muaremi’s and Fordyce’s desks. In February 2007, Rapshus complained to
Martin about Fordyce’s behavior. Pl.’s Ex. 31 at 70–71. She told Martin that Fordyce’s
behavior was not professional and that he used inappropriate language and conduct when he
talked to suppliers on the phone. Rapshus described one incident when Fordyce was talking on
the phone with a supplier and was “asking her what she did with her husband or boyfriend . . .
and what they did on their date.” Id. at 37. Rapshus thought that the conversation had sexual
overtones but she couldn’t hear what the supplier on the other end of the phone was saying.
Rapshus also thought that Fordyce had a “foul mouth” in that he often used the words “fuck” and
“suck” with employees in the office and while he was on the phone. These complaints were not
focused on Fordyce’s treatment of Musa-Muaremi. Rather, Rapshus wanted to note Fordyce’s
“erratic behavior . . . berating of people . . . how loudly he communicated and [that he] was often
very rude and inconsiderate.” Id. at 74. Raphshus did not state that she was making a complaint
pursuant to FTD’s sexual harassment policy.

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Sometime in 2007, Rapshus communicated with the Human Resources Department about
Fordyce’s behavior. Id. at 74–75. She also described certain “concerns that [she] had regarding
what was going with [Musa-Muaremi].” Id. at 22. Rapshus had witnessed Fordyce pull MusaMuaremi aside into a different area and yell at her. Rapshus also saw Fordyce stand near MusaMuaremi, point at her and say, “You,” and then point where he wanted her to go. Id. at 23.
In May 2007, Rapshus complained to Ben Pauley, the CEO of FTD, about Fordyce’s
behavior. Rapshus told Pauley that Fordyce had “hauled [Musa-Muaremi] off to another area of
the building” and that she could not “stand by and continue to watch Andrew Fordyce treat
people – Nadia in particular – like this.” Id. at 73. Rapshus told Pauley that she thought that
there was going to be a “bigger problem than just Nadia” if FTD did not “do something about
Andrew.” Id. at 73. Pauley told her to “take it up with HR.” Id. at 74.
III.

Musa-Muaremi’s May 1, 2007 Grievance
On May 1, 2007, Musa-Muaremi submitted a six page type-written complaint to Weld, in

the Human Resources Department, asserting that Fordyce had subjected her to various forms of
verbal abuse. The detailed allegations in the complaint include:
•

Fordyce used the word “bitch.” On one occasion, after a conversation with a
grower, Fordyce turned to Musa-Muaremi and said, “What a bitch!” MusaMuaremi told him that the comment was inappropriate and Fordyce replied that
some females are “sour and can be bitchy.” Fordyce then said, “You know you’re
a bitch.” Musa-Muaremi told him not to say it again. On another occasion,
Fordyce told Musa-Muaremi not to “be such a bitch” when he overheard her on
the phone with a discourteous airline representative. Musa-Muaremi told him that
she took offense to his comments and he responded, “[I]f I was someone on the
other end of the line I would say you are a[] f-in bitch.” On a third occasion,
Fordyce said that Musa-Muaremi was being “such a bitch about things.”

•

Fordyce yelled at Musa-Muaremi in front of other employees and said, “Next
time I have a problem with you I will pull you by your little curls into a
conference room and we can hash it out there.”
12

•

Fordyce snapped his fingers and pointed at where he wanted Musa-Muaremi to
go. He also yelled her name loudly to get her attention instead of walking over to
her.

•

While Fordyce was with Musa-Muaremi on a business trip in Miami, he discussed
a party at North Beach and said, “I heard that some of our girls were drinking
Purple Hooters . . . but I don’t want people around the company to think my girls
are loose. Its [sic] okay to drink as long as no bras or panties come off.”

•

Fordyce compared Musa-Muaremi’s appearance to another employee and stated,
“[The other employee] is thin, cute you know the cheerleader body and will get
far in any job. You on the other hand I don’t find attractive but that’s okay
because some people do. Don’t get me wrong . . . [the other employee] is the
package.”

•

Fordyce told Musa-Muaremi that she should “tame” her curly hair and wear it
straight because it looked more professional.

•

While they were on a business trip in Miami, Fordyce asked Musa-Muaremi why
she was “uptight.” He stated, “If something is bothering you . . . tell me. I need
to make sure that my employees are physically, emotionally and sexually happy.”
Musa-Muaremi told him that she didn’t want to talk about her personal life.

•

Fordyce had a sexually explicit phone conversation with a female recruiter.

•

In Musa-Muaremi’s presence, Fordyce referred to other employees as “retarded,
dumb, stupid, sad, sneaky, loser, bitch, kiss-ass, and annoying.” He favored some
female employees over others.

•

When Musa-Muaremi wanted to send an email to 32 growers instead of calling all
of them individually, as Fordyce instructed, Fordyce got angry and began to
clench his first and repeatedly punch his left hand into his palm.

•

Musa-Muaremi heard from Fordyce that he had told two employees to “[g]et your
ass out of bed and do your fucking jobs” when they failed to come to work for
voluntary overtime for the Mother’s Day holiday.

•

Fordyce allowed some employees to take undocumented time off, long lunches,
and allowed them to leave work early to get cocktails.

Musa-Muaremi told Weld that what she had written down in the complaint was the “Grated version” of what she had overheard Fordyce say during his phone conversations. Def.’s
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Ex. 1 at 253. She also told Weld that Fordyce had told Sara Fett and Kristin Esposito that they
“were rolling around in bed and playing around with their boyfriends” while he was on the
phone with them. Musa-Muaremi did not provide any details regarding the other conversations
to Weld. Weld told Musa-Muaremi that the complaint was serious and that FTD would conduct
an investigation into her allegations in accordance with the company’s anti-harassment policy.
After Musa-Muaremi turned in her complaint to the Human Resources Department, she
returned to her desk to work. Sometime that afternoon, she heard Fordyce talking “really
loudly” to someone on the phone and she asked him to get off the phone. Fordyce started yelling
at Musa-Muaremi, allegedly because she had done something wrong on a project. He told her to
follow him to a different part of the FTD office so that their conversation would not be
overheard. Once there, Fordyce told Musa-Muaremi that she was acting strangely and asked
where she had been that morning. Fordyce told Musa-Muaremi, “This is it. Either you tell me
everything or that’s it and you’re done.” Id. at 367. Musa-Muaremi lied about where she had
been because she didn’t want Fordyce to know that she had talked to the Human Resources
Department about his conduct. Musa-Muaremi then asked if she could leave for the day, stating
that she needed to study for a class. Fordyce approved the time off and she left for the day after
she had finished her work. Id. at 274–76.
That afternoon, Musa-Muaremi sent an email to Weld stating, “For the first time in my
professional career – I had to physically remove myself and leave work due to the verbal and
emotional abuse of . . . my ‘Manager.’ This afternoon I was once again subjected to Andrew’s
antics. . . . If I didn’t leave I wouldn’t have been able to work. I’m exhausted and physically
drained and I realize that this is just the beginning.” Pl.’s Ex. 21.

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Later that day, Rapshus sent an email to Weld that stated that she had just encountered
Musa-Muaremi as she was leaving the office after another “Andrew episode.” Pl.’s Ex. 4.
Rapshus wrote that she knew that Musa-Muaremi had filed a complaint with the Human
Resources Department that morning and that she had talked to Musa-Muaremi for almost an
hour regarding “the situation” on the previous day. Pl.’s Ex. 33 at 146–47; Pl.’s Ex. 4. Rapshus
stated that she had “mentioned [the situation with Fordyce] to Ben Pauley a bit ago because I
have witnessed Andrew’s behavior and intimidation tactics on a number of occasions and quite
honestly, something needs to be done about his language and his apparent lack of management
skills.” Pl.’s Ex. 4.
Fordyce was out of the office on a business trip to Miami from May 2 through May 12.
On May 9, Fordyce talked to Musa-Muaremi on the phone and said that he had heard from “the
girls” that Musa-Muaremi had submitted a complaint and that FTD had opened an investigation.
Fordyce said, “I want to know what’s in that document.” He continued, “No, I don’t want to
know, and I’m not even supposed to be talking to you. We need to do this and we need to finish
the work and that’s it.” Def.’s Ex. 1 at 278. Fordyce didn’t mention anything else about the
complaint during their conversation.7
During the same time period, Martin told Musa-Muaremi that he wanted to take her out
to lunch to discuss some work issues that were relevant to the upcoming Mother’s Day holiday.
At lunch, Martin asked Musa-Muaremi, “So what is this rumor I hear about some multipage
document floating around that you gave to HR?” Id. at 393. Musa-Muaremi told Martin that she
7

Musa-Muaremi also testified that she overheard other employees stating that they had heard that
Fordyce was “pissed off” as a result of the complaint and that he was “going to get back at [MusaMuaremi] for it.” Def.’s Ex. 1 at 394–95. These statements are hearsay and will not be considered by the
court.

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had filed a formal complaint about Fordyce’s conduct. Martin then asked about certain aspects
of her complaint that were related to him. Id. at 394.
On May 9, Martin talked to Musa-Muaremi again about the investigation. He
approached Musa-Muaremi at her cubicle at about 6:00 PM, after all of the other employees
except for Jensen had gone home from work. Martin told Musa-Muaremi that when Fordyce
came back to the office she wouldn’t “want to be here anyway . . . . You want to look for another
job because he will make sure that your work reflects how he feels.” Id. at 387. Martin offered
Musa-Muaremi two to three weeks of paid leave to look for another job. Id. at 386. Martin
stated that there was “nothing he could do about it” and that even if he left the company, Fordyce
would probably get promoted to his position. Id. at 387.
On May 14, Musa-Muaremi emailed Fordyce and requested the next day off from work.
Fordyce replied, “it’s okay for you to take tomorrow off. It’s no problem. Thanks for letting me
know.” Id. at 297–98.
IV.

FTD’s Investigation of Musa-Muaremi’s Grievance
After Musa-Muaremi submitted her complaint, Weld and Majka reviewed the allegations

in detail with Larry Johnson, the Executive Vice President of the Florist Segment and supervisor
over the Human Resources Department. Over the course of the next two weeks, Majka and
Weld interviewed thirteen employees in the Fresh Flowers Department. They asked questions
based on a form that had been drafted by Weld and Majka in consultation with FTD’s inside and
outside counsel. Pl.’s Ex. 35 at 72. Employees were told that the Human Resources Department
wanted to talk to them “regarding the Fresh Flowers division to get a general feel of the
atmosphere and the department.” Pl.’s Ex. 22 at 1. The form comprised the following questions:

16

•
•
•
•
•
•
•

How would you describe your work environment?
Do you feel your work environment is hostile?
Who is your direct manager?
Do you feel that your dealings with your manager is [sic] fair?
Do you have any obstacles in your department?
Describe the morale of your team?
Any other comments?

Pl.’s Ex. 22 at 1. Weld and Majka took notes on the employees’ responses and then discussed
the results of the interviews.
Weld, at her deposition, provided testimony regarding comments made by several
employees during the interviews. Aimee Bachman told Weld that Fordyce “pick[ed] on people,”
Musa-Muaremi in particular, snapped his fingers, and that Fordyce allowed favorite employees
to take undocumented time off, long lunches, and leave early for cocktails. She also stated that
he had “no interest in [her] growth [because] I am not 23 and a size 2.” Pl.’s Ex. 33 at 58–64.
Weld concluded that these statements did not substantiate the claims in Musa-Muaremi’s
grievance because they could have been “hearsay” statements relayed to Bachman by MusaMuaremi. Id. at 61–63. Weld believed that Musa-Muaremi and Bachman were friends and that
it was possible that Bachman’s statements were based on hearsay. She did not, however, ask
Bachman any follow-up questions that might have confirmed the source of her information.
Michelle Moomaw stated that Nadia had been yelled at by Fordyce and that she had seen
other employees treated badly. Id. at 67. Sonia Sandoval stated that Fordyce gave preferential
treatment to two female employees and that the situation in the office amounted to “Andrew,
Shannon, Kristin, favorites versus everyone else.” Id. at 68. Tiffanie Hardekopf stated that
Fordyce had “called [Musa-Muaremi] a bitch a few weeks ago” and that Fordyce had “favorites
on the team.” Id. at 70.

17

James Majka, the brother of Amy Majka, also told Weld that Fordyce had called MusaMuaremi a bitch. Id. at 72. He stated that Fordyce “ha[d] it out for [Musa-Muaremi]” and that
he treated her badly. Id. Weld testified that she did not believe that James Majka’s statements
confirmed the assertions in Musa-Muaremi’s grievance because his statement that Fordyce “has
it out for Nadia” might not mean the same thing as being “singled out,” which is what MusaMuaremi had written on her grievance. Id. at 73. James Majka also stated that Fordyce would
pound his fists when he was frustrated and that Fordyce had a discussion with Musa-Muaremi
where he yelled and swore at her and she had tears in her eyes. Id. at 75. Weld testified that
these statements did not confirm the allegations in Musa-Muaremi’s grievance because MusaMuaremi had brought a sexual harassment complaint and these actions did not amount to
harassment. Id. at 75–76. Rather, they were “unprofessional behavior.” Id. at 76.
Johnson, Weld, and Majka interviewed Martin and Fordyce regarding the allegations in
Musa-Muaremi’s complaint. Fordyce denied making any sexual comments to Musa-Muaremi,
engaging in sexually explicit conversations on the phone at work, making comments that he
preferred to hire females, or calling Musa-Muaremi a bitch. Fordyce also denied that he had
singled out Musa-Muaremi for unfavorable treatment or that he had been rude to her. Indeed, at
one point he stated that he was offended by the line of questioning and told the interviewers that
they were “full of shit.” Pl.’s Ex. 33 at 96.
Weld did not interview Rapshus as part of the internal investigation of Fordyce because
Rapshus was not in the Fresh Flowers Department and because she traveled frequently for work.
Pl.’s Ex. 33 at 83–84. In addition, Rapshus’s May 1 email did not say that she had witnessed
harassing conduct that was specifically directed towards Musa-Muaremi. Majka similarly

18

testified that she did not interview Rapshus because Rapshus was not a witness to any
harassment directed at Musa-Muaremi. Pl.’s Ex. 35 at 54.
V.

May 17 and May 21 Meetings and Resignation
On May 17, 2007, Johnson, Majka, and Weld met with Musa-Muaremi to explain the

results of the investigation to her. They stated that they had not been able to substantiate her
allegations of sexual harassment or sex discrimination but that Fordyce had engaged in
unprofessional conduct. Fordyce and Martin would have to undergo Management Training,
which would include review of FTD’s anti-harassment policy. In addition, Human Resources
would monitor all of Fordyce’s one-on-one and group meetings with employees. Musa-Muaremi
would still have to report to Fordyce as her supervisor.
Musa-Muaremi stated that she did not believe that Fordyce’s behavior would change and
that she did not believe that FTD was going to be able to monitor all of Fordyce’s conduct unless
someone followed him all the time. Def.’s Ex. 1 at 282–83. Musa-Muaremi stated that she
would need some time to consider whether she wanted to continue working at FTD, given that
she would still have to report to Fordyce as her supervisor. Musa-Muaremi was given the rest of
the week off from work.
The next day, May 18, Fordyce received a Final Written Warning for his unprofessional
conduct in the workplace. The Final Written Warning gave Fordyce a 90-day probationary
period, required Fordyce to attend Management Training, which included anti-harassment
training, required that the Human Resources Department monitor any one-on-one meetings
between Fordyce and the employees he supervised, and stated that any further instances of
misconduct would result in further discipline, including termination.

19

That same day, Musa-Muaremi received an email from Lealoni Hemphill, who worked
for one of FTD’s vendors and was a good friend and former employer of Fordyce. Hemphill
accused Musa-Muaremi of having made a mistake on a project and copied several other
employees on the email, including Fordyce. Musa-Muaremi concluded that Hemphill’s email
was a form retaliation for having complained about Fordyce because Fordyce was working onsite at Hemphill’s office in Miami at that time. She forwarded the email to Weld and Majka.
On May 21, 2007, Musa-Muaremi met with Johnson and stated that she did not want to
report to Fordyce and asked if there were any other positions available in the company. Johnson
stated that she would not be able to change positions. Musa-Muaremi told Johnson that she had
“no choice but to resign” because she could not continue working in a hostile work environment.
Def.’s Ex. 1 at 288. She told Johnson about the email from Hemphill and said that if it was a
“taste of what’s to come, I don’t want to be a part of it.” Id. at 435–36. She also told Johnson
that Martin had told her that Fordyce would try to “make [her] job here really difficult” as a
result of the complaint and that she was fearful for her job. Id. at 436.
On May 25, 2007, Musa-Muaremi filed a charge of discrimination with the Equal
Employment Opportunity Commission alleging gender discrimination, sexual harassment, and
retaliation. She filed her complaint on March 24, 2009.
DISCUSSION
I.

Quid Pro Quo Harassment
FTD argues that there is insufficient evidence to support Musa-Muaremi’s claim for quid

pro quo harassment. “Quid pro quo harassment occurs in situations where submission to sexual
demands is made a condition of tangible employment benefits.” Bryson v. Chicago State Univ.,

20

96 F.3d 912, 915 (7th Cir. 1996). Musa-Muaremi argues that she was denied bonuses,
undocumented time off, preferential schedules, cocktails, and free food because she was
unwilling to participate in Fordyce’s sexual banter. As a threshold issue, this conclusion is
without evidentiary support. Moreover, Fordyce’s vulgar comments cannot reasonably be
construed as an “effort . . . to extract sexual favors by threats or promises.” DeClue v. Cent. Ill.
Light Co., 223 F.3d 434, 437 (7th Cir. 2000). Indeed, the Seventh Circuit rejected a nearly
identical theory of liability in Brill v. Lante Corporation, 119 F.3d 1266 (7th Cir. 1997), where
the plaintiff asserted that she had been fired for refusing to act as “one of the boys” as a
condition of her employment. The court of appeals “decline[d] to blur the line between hostile
environment and quid pro quo harassment such that a plaintiff encountering vulgar banter could
file either type of claim though no sexual advance was ever issued to her.” Id. at 1274. FTD’s
motion for summary judgment on Musa-Muaremi’s claim for quid pro quo harassment will be
granted.
II.

Hostile Work Environment
To establish a prima facie case for a hostile work environment within the meaning of

Title VII, Musa-Muaremi must show that (1) “she was subjected to unwelcome harassment,” (2)
“the harassment was based on her sex,” (3) “the harassment was sufficiently severe or pervasive
so as to alter the condition of her employment and create a hostile or abusive atmosphere,” and
(4) “there is a basis for employer liability.” Kampmier v. Emeritus Corp., 472 F.3d 930, 940
(7th Cir. 2007). FTD argues that Musa-Muaremi has not met the second, third, or fourth
requirements.
A.

Harassment Based on Sex

21

At the least, an issue of fact exists as to whether Fordyce’s conduct towards MusaMuaremi was based on her gender. Fordyce asked Musa-Muaremi about her sex life, asked
whether she planned on getting pregnant, stated that women could not be “breadwinners” or get
promotions, and told her that she needed to lose weight because “the Coke bottle shape” was
“out.” He also referred to a female employee’s breasts, discussed female employees’ sex lives,
teased Musa-Muaremi about working at a strip club, and made a sexual reference to his genitalia.
There is no evidence that Fordyce’s rude comments to male employees had a similarly sexual
component. Therefore a jury could reasonably conclude that Fordyce’s conduct was based on
Musa-Muaremi’s gender.

22

B.

Severe or Pervasive Harassment

An issue of fact also exists as to whether Fordyce’s conduct was sufficiently severe or
pervasive to create a hostile work environment. A hostile work environment exists when an
employee is subject to conduct that is both objectively and subjectively offensive. Rhodes v. Ill.
Dep’t of Transp., 359 F.3d 498, 505 (7th Cir. 2004). FTD does not contest that Musa-Muaremi
found Fordyce’s conduct to be subjectively hostile. To determine whether Musa-Muaremi’s
work environment was objectively abusive or hostile, the court must consider the totality of
circumstances, “including the frequency and severity of conduct, whether it is threatening and/or
humiliating or merely offensive, and whether the harassment unreasonably interferes with an
employee’s work.” Valentine v. City of Chicago, 452 F.3d 670, 681 (7th Cir. 2006) (quoting
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975–76 (7th Cir.2004)).
Courts usually focus on whether verbal harassment was accompanied by an
“inappropriate touching” in determining if the conduct created an objectively hostile working
environment. See Turner v. The Saloon, Ltd., 595 F.3d 679, 685–86 (7th Cir. 2010). Fordyce
never touched plaintiff, however. She asserts that he would snap his fingers and point where he
wanted her to go and slap his fist into his palm. Although disrespectful, these actions are not
inherently sexual,8 and there is evidence that Fordyce punched his fist into the palm of his hand
when he was near male employees.
When analyzing sexual harassment claims based on verbal conduct alone, courts look to
factors such as whether the harasser threatened the plaintiff, whether he solicited her to have sex

8

Musa-Muaremi also asserts that Fordyce “threatened to drag her by her hair,” but this is
supported only by citation to paragraph 9 of her statement of material facts, which has been stricken for
failure to comply with Local Rule 56.1. See Minute Order dated Oct. 5, 2011.

23

with him, or whether his comments demonstrate “anti-female animus.” See, e.g., Boumehdi v.
Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007); Baskerville v. Culligan Int’l Co.,
50 F.3d 428, 430 (7th Cir. 1995). The court must also examine whether the statements were
made directly to the plaintiff or to other employees. Dandy v. United Parcel Serv., Inc., 388
F.3d 263, 271 (7th Cir. 2004).
Musa-Muaremi has submitted evidence that Fordyce called her a “bitch,” stated that
women can’t be “breadwinners,” implied that she worked as a stripper, asked whether she was
“sexually happy,” engaged in sexually explicit phone calls that he knew she could overhear, told
her that she had a “Coke bottle body,” used crass language such as “rape,” and made sexual
comments about other female employees. These comments were sexist and vulgar and would
offend many reasonable women. Each time Musa-Muaremi told Fordyce that she was offended
by his behavior, however, she was either ignored or insulted. In addition, Fordyce belittled
Musa-Muaremi in front of other employees by yelling at her and snapping his fingers at her and
pointing to where he wanted her to go. The evidence suggests that Musa-Muaremi was not the
only employee who concluded that she was being singled out by Fordyce: Cindy Rapshus and
James Majka also told the Human Resources Department that they were concerned about
Fordyce’s treatment of Musa-Muaremi as compared to other employees. Finally, Fordyce made
comments to other employees that were offensive to women generally and therefore fell with the
“target area of offending conduct.” Yuknis v. First Student, Inc., 481 F.3d 552, 554 (7th Cir.
2007) (directing courts to avoid the term “secondhand harassment” and instead consider whether
speech directed to individuals other than the plaintiff falls “within the target area of the
offending conduct – if, for example, the speech or conduct is offensive to women and one is a

24

man”); Boumehdi, 489 F.3d at 788 (comments reflecting “anti-female animus” were sufficient to
support hostile work environment claim).
FTD argues that Fordyce’s comments, though inappropriate, fall within what has been
referred to as the “safe harbor” for “tepid or intermittent conduct.” Galloway v. Gen. Motors
Serv. Parts Operations, 78 F.3d 1164, 1168 (7th Cir. 1996). Given the circumstances of MusaMuaremi’s supervision by Fordyce, however, this is a question for the jury to decide. MusaMuaremi’s desk was located in close physical proximity to Fordyce’s desk and she received
assignments from him on a daily basis. Thus there was no way to avoid or mitigate much of
Fordyce’s harassing conduct. In addition, whether or not Fordyce had the power to terminate
employees, he had significant influence over their day-to-day work activities and, ultimately,
their performance reviews with upper management. The pervasiveness of Fordyce’s demeaning
conduct, taken together with his significant managerial role, distinguishes Musa-Muaremi’s case
from those that involve “occasional vulgar banter” and coarse, but not humiliating, conduct. Cf.
Baskerville, 50 F.3d at 430, 431 (no objectively hostile work environment where supervisor
called employee a “pretty girl,” made grunting noises as she left his office wearing a leather
skirt, told her that his office did not get “hot” until she stepped into it, joked that “all pretty girls
[should] run around naked, and made gestures suggesting masturbation); McPherson v. City of
Waukegan, 379 F.3d 430, 439 (7th Cir. 2004) (supervisor’s “limited and infrequent” inquiries
about what color bra employee was wearing, using a suggestive tone of voice in asking whether
he could “make a house call” when she called in sick, and pulling back her tank top with his
fingers on one occasion did not create an objectively hostile work environment); Adusumilli v.
City of Chicago, 164 F.3d 353, 361–62 (7th Cir. 1998) (supervisor’s teasing about waving at

25

squad cars, ambiguous comments about bananas, rubber bands, and low-neck tops, staring and
attempts to make eye contact, and four isolated incidents in which a co-worker briefly touched
employee’s arm, fingers, or buttocks were not actionable). Drawing all the inference in MusaMuaremi’s favor, a reasonable jury could conclude that Fordyce’s repeated and offensive
conduct affected the terms of Musa-Muaremi’s employment with FTD. Therefore a genuine
issue of fact exists as to whether Fordyce’s conduct was so severe and pervasive as create a
hostile work environment.
C.

Employer Liability

Musa-Muaremi must demonstrate that FTD is vicariously liable for Fordyce’s conduct in
order to prevail on her hostile work environment claim against FTD. “An employer is subject to
vicarious liability to a victimized employee for an actionable hostile work environment created
by a supervisor with immediate (or successively higher) authority over the employee.”
Johnson v. West, 218 F.3d 725, 730 (7th Cir. 2000) (citing Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 766, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Faragher v. City of Boca Raton,
524 U.S. 775, 807, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). Strict liability applies when the
supervisor’s harassment results in a tangible employment. Id. at 730. If no tangible employment
action occurred, an employer may avoid vicarious liability by showing “(a) that the employer
exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer or to avoid harm otherwise.” Id. (citing
Faragher, 524 U.S. at 789, 808) (internal quotation marks and citations omitted). For conduct
by a co-worker, as opposed to a supervisor, an employer will be liable if it “was negligent either

26

in discovering or remedying the harassment.” Hall v. Bodine Elec. Co., 276 F.3d 345, 356 (7th
Cir. 2002) (internal quotation marks and citations omitted).
i.

Supervisory Authority

The parties dispute whether Fordyce’s conduct should be analyzed pursuant to the theory
of supervisor liability set forth in Ellerth and Faragher or under the negligence standard for coworker harassment. FTD has presented undisputed evidence that Fordyce did not have the actual
authority to hire, fire, and discipline employees. It urges the court to apply the negligence
standard on the grounds that Fordyce was not Musa-Muaremi’s supervisor. FTD may, however,
be held liable for Fordyce’s actions under the principle of apparent authority if Fordyce
“purport[ed] to exercise a power which he . . . [did] not have.” Ellerth, 524 U.S. at 759;
Parkins v. Civil Constrs. of Ill., Inc., 163 F.3d 1027, 1033 (7th Cir. 1998). Musa-Muaremi and
two other employees testified that they believed that Fordyce had the authority to fire and
discipline employees. They further testified that Fordyce threatened employees with termination.
Given that Fordyce had the power to recommend termination, and that he was in charge of
Musa-Muaremi’s day-to-day work assignments, this evidence is sufficient to create an issue of
fact as to whether a reasonable employee would have believed that Fordyce had supervisory
authority for the purpose of imputing liability to FTD. See Gawley v. Ind. Univ., 276 F.3d 301,
311 (7th Cir. 2001) (“If [a supervisor] was entrusted with powers that rendered subordinates less
likely to blow the whistle on him, then he was aided by the agency relationship in harassing
subordinate employees.”); see also Doe v. Oberweis Dairy, 456 F.3d 704, 716–18 (7th Cir.
2006) (“no compelling need to make a dichotomous choice” between strict liability and
negligence where employee has some, but not all, powers of the “paradigmatic” supervisor).

27

The court will therefore consider whether FTD should be held strictly liable or whether it may
assert an affirmative defense under Ellerth and Faragher.
ii.

Tangible Employment Action

An employer is only strictly liable for harassment inflicted by a supervisor where the
supervisor’s harassment culminated in a tangible employment action. Ellerth, 524 U.S. at 765;
Faragher, 524 U.S. at 807. A tangible employment action typically takes the form of
termination, failure to promote, reassignment with significantly different responsibilities, or “a
decision causing a significant change in benefits.” Ellerth, 524 U.S. at 761. A tangible
employment action may also take the form of constructive discharge, but only if the discharge
resulted from an “official act” by a supervisor. Penn. State Police v. Suders, 542 U.S. 129,
147–48, 124 S. Ct. 2342, 159 L. Ed. 2d 204 (2004); Robinson v. Sappington, 351 F.3d 317, 336
(7th Cir. 2003). If, on the other hand, the constructive discharge was caused by coworkers or
other individuals without supervisory authority, an employer may still assert an affirmative
defense under Ellerth/Faragher. Suders, 542 U.S. at 148.
Musa-Muaremi argues that the requirement that she continue to reporting to Fordyce,
even after FTD’s investigation of her complaint, amounts to an adverse employment action or,
“in the alternative,” constructive discharge. Constructive discharge is not an “alternative” to an
adverse employment action, but rather is one of the forms that an adverse employment action can
take. Furthermore, there is no evidence that any other type of adverse employment action took
place. Musa-Muaremi was not terminated, demoted, reassigned to a different job with different
responsibilities, or deprived of material job benefits. The alleged tangible employment action in
this case is constructive discharge.

28

Constructive discharge occurs when “an employer makes an employee’s working
conditions so intolerable that an employee is forced into involuntary resignation.” Roby v. CWI,
Inc., 579 F.3d 779, 785 (7th Cir. 2009). “[W]orking conditions for constructive discharge must
be even more egregious than the high standard for hostile work environment because in the
ordinary case, an employee is expected to remain employed while seeking redress.” Tutman v.
WBBM-TV, Inc./CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000). Whether an employee’s work
environment meets the standard for constructive discharge is determined from the perspective of
a reasonable employee. Roby, 579 F.3d at 785. The court must also assess the reasonableness of
the employer’s response to the harassing conduct. Porter v. Erie Foods Int’l, Inc., 576 F.3d 629,
640 (7th Cir. 2009).
Musa-Muaremi testified that she complained to Martin several times about Fordyce’s
conduct, beginning in February 2007, and that she told Martin that Fordyce had called her a
“bitch.” Musa-Muaremi testified that Martin responded that she should “manage” Fordyce. On
another occasion, Musa-Muaremi complained to Martin about Fordyce’s sexually explicit phone
calls. Martin said that he had already discussed the conversation with Fordyce, but did not
promise any additional follow-up. Musa-Muaremi also testified that she complained to the
Human Resources Department several times between February and April 2007, stating that
Fordyce made inappropriate comments and used the word “bitch.” Only by investigating the
context of these comments could FTD have determined whether Fordyce’s use of the word
“bitch” amounted to sexual harassment or not. Indeed, Musa-Muaremi had also previously
complained about Fordyce’s pregnancy comment during her interview, which might suggest that

29

there was a sexual component to his conduct. Nevertheless, there is no evidence that FTD
investigated any of Musa-Muaremi’s early complaints.
Then, in April 2007, Musa-Muaremi told Amy Majka, the Director of Human Resources,
that Fordyce was “overly sexual” with some of the female employees and reiterated that Fordyce
made inappropriate comments. She also said that she had complained to Martin but that the
behavior continued. Majka told Musa-Muaremi that she would “look into it,” but there is no
evidence that any investigation occurred until Musa-Muaremi turned in her written complaint on
May 1. After Musa-Muaremi submitted her written complaint, FTD’s Human Resources
Department did not interview her or ask her to elaborate on the substance of her allegations. Nor
did FTD ask for the names of potential witnesses. Later on, Musa-Muaremi sent an email to the
Human Resources Department that stated that she believed that Fordyce had once again harassed
her. FTD conducted no follow-up, despite the explicit anti-retaliation provision in its sexual
harassment policy. Musa-Muaremi was, however, questioned by Fordyce and Martin about the
substance of her complaint. Their comments suggest a lack of professionalism and respect for
the confidentiality and sensitivity of a sexual harassment complaint. In addition, while the
investigation was ongoing, Martin approached Musa-Muaremi and told her to look for another
job because Fordyce “will make sure that your work reflects how he feels.” He also said that
there was “nothing he could do” about Fordyce’s conduct and that Fordyce would probably
become the Director of Fresh Flowers if Martin were to leave FTD.
Under these circumstances, a reasonable employee could have concluded that she had no
choice but to resign, rather than continue to report to her harasser. See Boumehdi, 489 F.3d at
790 (employee was constructively discharged when she presented evidence of retaliatory actions

30

after she complained to human resources and her employer failed to respond despite repeated
complaints of sexual harassment). FTD’s delay in responding to Musa-Muaremi’s complaints,
both before and after her May 1 grievance, suggests that FTD’s corrective action was not
reasonable. See Porter, 576 F.3d at 636 (prompt investigation is the “hallmark of a reasonable
corrective action” (citation omitted)). Equally significant is Martin’s comment that MusaMuaremi should look for another job and that he could do “nothing” about Fordyce’s conduct as
a manager. Martin made this comment in his official capacity as the Director of Fresh Flowers
and as Fordyce’s supervisor, and as such it suggests that Fordyce’s actions were sanctioned by
FTD. See Robinson, 351 F.3d at 337 (supervisor’s indication that it was in employee’s “best
interest to resign” had “added effect because [supervisor] was speaking in his official,
supervisory capacity when the suggestion was made” and could support constructive discharge
claim). In addition, Musa-Muaremi testifies that, when she met with the Human Resources
Department on May 21 she told Johnson that Martin said that Fordyce would “make her job . . .
really difficult.” She also told Johnson that she feared for her job. FTD should have
investigated these statements because the success of any corrective action would have been
dependent, in part, on Martin’s willingness to monitor and discipline Fordyce. Martin’s
comment also raises concerns about future retaliation by Fordyce, which would have been a
clear violation of FTD’s written harassment policy. The fact that FTD did not investigate this
new allegation, but instead accepted Musa-Muaremi’s resignation, lends further support to the
conclusion that additional misconduct would have been condoned. Finally, Weld’s testimony
suggests that FTD applied an exceedingly stringent standard in evaluating the merits of MusaMuaremi’s written complaint. More than one employee stated during the investigation

31

interviews that Fordyce had favorite employees, mistreated Musa-Muaremi, and called her a
“bitch.” FTD has not demonstrated that Weld’s decision not to ask follow-up questions, in at
least one instance because she determined that an employee may have been reciting “hearsay,”
was reasonable under the circumstances.
For all of these reasons, a genuine issue of fact exists as to whether Musa-Muaremi was
constructively discharged and whether FTD may be held strictly liable for Fordyce’s conduct.
FTD’s motion for summary judgment with respect to Musa-Muaremi’s hostile work environment
claim must be denied. The court need not consider whether FTD can mount a successful
affirmative defense under Ellerth and Faragher. See Robinson, 351 F.3d at 337 n.13.
III.

Sex Discrimination
To establish sex discrimination under Title VII, Musa-Muaremi may proceed either

directly, by presenting direct and/or circumstantial evidence of discriminatory intent, or
indirectly, by utilizing the burden-shifting method established by McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Under the direct method, MusaMuaremi may prove her case through direct evidence (such as an admission by the
decisionmaker that his actions were based on unlawful animus) or through circumstantial
evidence, “i.e., evidence that allows a jury to infer intentional discrimination by the
decisionmaker.” Rogers v. City of Chicago, 320 F.3d 748, 753–54 (7th Cir. 2003); Alexander v.
Wisc. Dep’t of Health & Family Servs., 263 F.3d 673, 682 (7th Cir. 2001). Under the indirect
method, Musa-Muaremi must first make out a prima facie case for discrimination by showing
that (1) she is a member of a protected class, (2) she met FTD’s legitimate expectations, (3) she
suffered an adverse employment action, and (4) similarly situated employees who were not in the

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protected class were treated more favorably. See Scaife v. Cook Cnty., 446 F.3d 735, 739 (7th
Cir. 2006). Musa-Muaremi does not state which method she proceeds under, but she fails to
establish a prima facie case using either method of proof.
Musa-Muaremi has not demonstrated that similarly situated male employees were treated
more favorably than she was, a requirement under the indirect method of proof. The evidence
that she cites in support of her sex discrimination claim, which relates to the termination of
James Majka and Martin, is inadmissible. The relevant statements of fact have been stricken
from her Local Rule 56.1 statement. See Minute Order dated Oct. 5, 2011. In addition, MusaMuaremi has not demonstrated that either Majka or Martin were similarly situated employees. A
plaintiff must show that similarly situated employees were “comparable to the plaintiff in all
material respects.” Crawford v. Ind. Harbor Belt Ry. Co., 461 F.3d 844, 846 (7th Cir. 2006).
The similarly situated requirement is flexible, but there must be enough evidence to perform a
“meaningful comparison . . . one which serves ‘to eliminate confounding variables, such as
differing roles, performances histories, or decision-making personnel.’” Argyropoulos v. City of
Alton, 539 F.3d 724, 735 (7th Cir. 2008) (quoting Humphries v. CBOS West, Inc., 474 F.3d 387,
405 (7th Cir. 2007)). Musa-Muaremi has presented no information about either Martin or Majka
that would allow the court to make these comparisons. Accordingly, Musa-Muaremi cannot
proceed under the indirect method of proof.
In the section of her memorandum addressing her sex discrimination claim, MusaMuaremi does not argue that she suffered an adverse employment action, a requirement under
both the direct and indirect methods of proof. In a different section of her memorandum she
asserts, as a section header, that “Constructive Discharge is Adverse Action (for all claims).”

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Pl.’s Mem. in Opp. to Def.’s Mot. for Summ. J. at 22. The text that follows this heading
constitutes a response to FTD’s argument that Fordyce’s sexual harassment did not result in an
adverse employment action. Thus, to the extent that Musa-Muaremi argues that she was
constructively discharged in support of her sex discrimination claim, her claims for hostile work
environment and sex discrimination are one and the same. See Bright v. Hill’s Pet Nutrition,
Inc., 342 F. App’x 208 (7th Cir. 2009) (“A hostile work environment is actionable as sex
discrimination; there are not distinct ‘claims’ for hostile work environment and sex
discrimination. . . . Constructive discharge likewise is not a distinct claim; it is a theory about
how the sex discrimination (= work environment hostile because of the employee’s sex) caused
harm (by forcing the employee to quit, in order to avoid additional injury).” (citations omitted)).
FTD’s motion for summary judgment with respect to Musa-Muaremi’s sex discrimination claim
will be granted in part and denied in part. Musa-Muaremi may not assert a claim for sex
discrimination other than the hostile work environment claim discussed above.
IV.

Retaliation
To establish retaliation, Musa-Muaremi may proceed either directly, by presenting direct

and/or circumstantial evidence of discriminatory intent, or indirectly, by utilizing the McDonnell
Douglas burden-shifting method. Under either method, Musa-Muaremi must show that she
suffered an adverse employment action. See Rogers, 320 F.2d at 753–54. In addition, under the
indirect method, Musa-Muaremi must show that (1) she engaged in a protected activity, (2) she
met FTD’s legitimate expectations, and (3) she was treated worse than similarly situated
employees who did not engage in the protected activity. Rogers, 320 F.3d at 754–55.

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Musa-Muaremi argues that Martin and Fordyce retaliated against her when (1) Fordyce
asked where she had been on the morning she submitted her grievance and then told her, “Either
you tell me or you’re done,” (2) Martin took her out to lunch and told her that Fordyce would
make things difficult for her if she kept working at FTD and offered her time off to look for a
new job, and (3) one of FTD’s customers sent Musa-Muaremi an email regarding mistakes on
one of her projects. None of these actions constitute an adverse employment action because no
discipline was issued and there was no loss in benefits. “An unfulfilled threat, which results in
no material harm, is not materially adverse.” Ajayi v. Aramark Bus. Servs., 336 F.3d 520, 531
(7th Cir. 2003); see also Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1121 (7th Cir. 2009)
(discussion of a suspension that was never actually served was not a materially adverse action).
Therefore Musa-Muaremi cannot bring a retaliation claim based on Fordyce’s or Martin’s
conduct.
Musa-Muaremi does not argue that she was constructively discharged in retaliation for
having filed a complaint about Fordyce’s conduct. Her assertion that “Constructive Discharge is
Adverse Action (for all claims)” is plainly insufficient, given that all of the facts that follow
relate only to her hostile work environment claim. Moreover, Musa-Muaremi must provide at
least some circumstantial evidence that the “decisionmaker” behind the adverse employment
action acted for a prohibited reason. See Rogers, 320 F.3d at 754. Musa-Muaremi does not
argue or cite any evidence members of the Human Resources Department decided that she
should continue reporting to Fordyce because they were motivated by retaliatory animus.
Because Musa-Muaremi has not demonstrated that she suffered an adverse employment action as

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a result of having engaged in a protected activity, FTD’s motion for summary judgment with
respect to Musa-Muaremi’s retaliation claim will be granted.

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CONCLUSION AND ORDER
For the reasons discussed above, FTD’s motion for summary judgment [#138] is granted
as to Musa-Muaremi’s retaliation and quid pro quo sexual harassment claims and denied as to
Musa-Muaremi’s hostile work environment claim. FTD’s motion for summary judgment as to
Musa-Muaremi’s sex discrimination claim is granted in part and denied in part. Musa-Muaremi
may not assert a sex discrimination claim on grounds other than those set forth in support of her
hostile work environment claim. Musa-Muaremi’s motion for partial summary judgment [#143]
is denied.

Dated: Oct. 5, 2011

Enter:____________________________________
JOAN HUMPHREY LEFKOW
United States District Judge

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