Moore v. Wal-Mart Stores, Inc.
MEMORANDUM OPINION Signed by the Honorable Samuel Der-Yeghiayan on 2/8/2017: Mailed notice (mw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WAL-MART STORES, INC.,
No. 15 C 5141
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Wal-Mart Stores, Inc.’s (WalMart) motion for summary judgment. For the reasons stated below, the motion for
summary judgment is granted.
In 2013, Plaintiff Shirley Moore (Moore) was allegedly employed by WalMart as a sales associate to work at a Wal-Mart store in Lansing, Illinois (Lansing
Store). Robert Rudd (Rudd) was allegedly an Assistant Manager at the Lansing
Store and was one of Moore’s supervisors. Moore contends that between January
2013 and April 2013, Rudd regularly made statements to Moore that Moore believed
to be of a sexual nature. Rudd also allegedly made inappropriate physical contact
with Moore on one occasion. Wal-Mart contends that in April 2013 it terminated
Moore’s employment due to excessive absenteeism. After the termination, Moore
allegedly complained about the alleged harassment by Rudd and Wal-Mart
conducted an investigation. Wal-mart contends that it conducted an investigation
and that although it failed to discover evidence to support Moore’s claims, it
reinstated her employment. Wal-Mart contends Rudd is no longer employed at WalMart. Moore includes in her complaint a hostile work environment claim brought
under the Illinois Human Rights Act (IHRA), 775 ILCS 5/1-101 et seq. Moore filed
the instant action in state court and Wal-Mart removed the action to federal court.
Wal-Mart now moves for summary judgment.
Summary judgment is appropriate when the record, viewed in the light most
favorable to the non-moving party, reveals that 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); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A “genuine
issue” in the context of a motion for summary judgment is not simply a
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a
motion for summary judgment, the court must consider the record as a whole, in a
light most favorable to the non-moving party, and draw all reasonable inferences in
favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens
Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
The IHRA guarantees “all individuals within Illinois the freedom from
discrimination. . . because of . . . her . . .sex” Rozsavolgyi v. City of Aurora, 58
N.E.3d 65, 74-75 (Ill. App. Ct. 2016). The IHRA defines sexual harassment as “any
unwelcome sexual advances or requests for sexual favors or any conduct of a sexual
nature when (1) submission to such conduct is made either explicitly or implicitly a
term or condition of an individual’s employment, (2) submission to or rejection of
such conduct by an individual is used as the basis for employment decisions affecting
such individual, or (3) such conduct has the purpose or effect of substantially
interfering with an individual’s work performance or creating an intimidating, hostile
or offensive working environment.” Id. (internal quotations omitted)(quoting 775
ILCS 5/2-101(E)); see also Trayling v. Bd. of Fire & Police Comm'rs of Vill. of
Bensenville, 652 N.E.2d 386, 394 (Ill. App. Ct. 1995)(noting that in Harris v.
Forklift Systems, Inc. 510 U.S. 17 (1993), “the Supreme Court further defined how
courts should determine whether conduct is severe or pervasive
enough to create an
objectively hostile or abusive work environment under Title VII”)(internal quotations
omitted); see also Frey v. Coleman, 141 F. Supp. 3d 873, 879 (N.D. Ill. 2015)(stating
that “[t]he requirements to make out a sexual harassment claim under the IHRA are
substantially the same” as those under Title VII); Hoosier v. Greenwood Hosp.
Mgmt. LLC, 32 F. Supp. 3d 966, 975 (N.D. Ill. 2014)(stating that “in determining
what constitutes harassment and a hostile work environment under the IHRA, Illinois
courts and the Illinois Department of Human Rights have examined federal decisions
under Title VII as the ‘prohibition of harassment in the Act closely parallels that
found in Title VII’”)(quoting Trayling v. Bd. of Fire & Police, 652 N.E.2d 386, 393
(Ill. App. Ct. 1995)). Wal-Mart contends that there is no evidence showing any
harassment based upon Moore’s sex and that any harassment was not sufficiently
severe or pervasive to be actionable.
I. Discrimination Because of Sex
Wal-Mart argues that the evidence does not indicate that the alleged comments
and actions by Rudd were related to Moore’s sex. Moore contends that Rudd
regularly commented when Moore walked past him that her pants were “fitting really
nicely.” (RSF Par. 39). Wal-Mart theorizes that Rudd might have been merely
commenting that Moore was in compliance with the dress code that prohibited
uniforms that were too tight or loose and that Rudd’s comments thus were not of a
sexual nature. While Wal-Mart could make such an argument to the trier of fact at a
trial, the evidence is not such that the court can make such a finding in favor of WalMart as a matter of law. Wal-Mart, as the movant, is not entitled to inferences in its
favor. Wal-Mart also argues that Moore is merely speculating that Rudd was
“thinking sexual thoughts” when commenting on Moore’s nicely fitting pants.
(Reply 3). Moore is not, however, burdened under the law with coming up with
evidence to prove what thoughts were inside Rudd’s head at the time. The
circumstantial evidence is such that a reasonable trier of fact could conclude that
Rudd was not making a visual uniform compliance check of Moore as Wal-Mart
proposes, and was instead making a comment of a sexual nature. See, e.g., Frey, 141
F. Supp. 3d at 881 (concluding that a “reasonable jury could only conclude that” the
alleged harasser’s “remarks were based on sex”). Wal-Mart cites to a case where a
police supervisor commented on the tightness of a subordinate officer’s uniform
during a routine uniform inspection, but that is not close to the facts of this case. See
Hilt-Dyson v. City Of Chicago, 282 F.3d 456, 460 (7th Cir. 2002)(concluding that
comment during uniform inspection was not because of sex).
Rudd also allegedly made statements to Moore with words to the effect that, if
she could read his eyes, she would know what he was thinking. (RSF Par. 39). WalMart contends that such a statement does not necessarily indicate that he was making
a romantic comment to Moore, and that there could have been other reasons for such
a statement. While Wal-Mart can take that position, the evidence does not preclude a
conclusion that the comment was intended, as Moore believes, to be a romantic
overture by Rudd. Such an ambiguous statement coupled with other statements such
as those regarding Moore’s pants could have been intended to convey sexual
Moore also contends that on one occasion she met with Rudd to complete a
request for financial assistance under the Associate in Critical Needs Trust (ACNT)
program. (RSF Par. 48). Moore claims that she was crying and upset and that Rudd
came and sat next to her and rubbed her back. (RSF Par. 48-50). Rudd then
allegedly removed his hand from her back and placed it on the top of her thigh and
told her that “it was all in the wording, and that all he needed was a little
encouragement, and she would be approved.” (RSF Par. 51). After assisting Moore,
Rudd allegedly gave Moore his home phone number and requested that she call him.
Wal-Mart contends that there are innocuous reasons why Rudd might have
taken such actions and made such statements. Wal-Mart argues that “it is clear that
Rudd was merely trying to comfort” Moore. (Mem. SJ 6). Wal-Mart also points out
that there is no evidence that shows that Rudd failed to assist Moore even though
Moore never agreed to enter into any sexual relationship with Rudd. Wal-Mart
contends that is an indication that there was not an attempt at a quid pro quo form of
harassment. See Byrd v. Wisconsin Dep’t of Veterans Affairs, 98 F. Supp. 3d 972,
980 (W.D. Wis. 2015)(giving elements for quid pro quo harassment). Also, Rudd
allegedly gave Moore his home phone number after he had finished helping Moore to
submit the ACNT application. (SAF Par. 8).
Wal-Mart is correct that some of the evidence concerning the alleged touching
incident is consistent with Rudd wanting to offer emotional support to Moore when
she was crying and in need of the ACNT funds. For example, Moore admits that she
was crying and shaking and that Rudd told her that he wished that he could help her
himself but that he did not have any extra funds available. (RSF Par. 50); (SAF Par.
7). While it is possible that Rudd was only trying to offer consolation to Moore, it is
also possible for a reasonable trier of fact to conclude, based on the contemporaneous
alleged comments, such as Rudd’s mention of “encouragement” and prior alleged
comments regarding her pants fitting “nicely” that Rudd was making a sexual
advance towards Moore when placing his hand on her thigh. Based upon the facts
and circumstances surrounding the above-referenced ambiguous statements made by
Rudd, Moore has provided sufficient evidence to show at this juncture that alleged
harassment was taken against her because of her sex.
II. Severe or Pervasive Harassment
Wal-Mart also contends that the alleged harassment by Rudd was not
sufficiently severe or pervasive to be actionable. Although Moore asserts that Rudd
repeatedly made comments to Moore, she alleges that the statements were only made
during a four month period. Moore does not allege that the alleged comments
relating to Moore’s pants and looking into Rudd’s eyes were of a threatening nature.
While such comments might have been offensive to Moore, that is not sufficient
under the law to constitute actionable harassment. See Scruggs v. Garst Seed Co.,
587 F.3d 832, 840 (7th Cir. 2009)(stating that “[f]actors in our assessment include
the severity of the allegedly discriminatory conduct, its frequency, whether it is
physically threatening or humiliating or merely offensive, and whether it
unreasonably interferes with an employee’s work performance”); Minor v. Ivy Tech
State Coll., 174 F.3d 855, 858 (7th Cir. 1999)(stating that “[i]t is not enough that a
supervisor or coworker fails to treat a female employee with sensitivity, tact, and
delicacy, uses coarse language, or is a boor” and that “[s]uch failures are too
commonplace in today’s America, regardless of the sex of the employee, to be
classified as discriminatory”).
Moore does allege that, on one occasion, Rudd placed his hand on her back
and thigh, but there is no indication that Rudd attempted to touch what would be
considered an intimate body part of Moore. Although touching can support a sexual
harassment claim, isolated touching of a body part that is not an “intimate body part,”
sometimes may not suffice to constitute actionable harassment. Turner v. The
Saloon, Ltd., 595 F.3d 679, 685-86 (7th Cir. 2010)(stating that “[p]erhaps the most
heavily emphasized factor . . . is whether there was inappropriate touching,” that
“[t]he fact that conduct . . . involves touching as opposed to verbal behavior increases
the severity of the situation,” and that “[t]his is especially true when the touching is
of an intimate body part”)(internal quotations omitted)(quoting Worth v. Tyer, 276
F.3d 249, 268 (7th Cir. 2001)); Worth, 276 F.3d at 268 (stating that the court has
“previously recognized that direct contact with an intimate body part constitutes one
of the most severe forms of sexual harassment”); Saxton v. Am. Tel. & Tel. Co., 10
F.3d 526, 528 (7th Cir. 1993)(finding insufficient evidence to show a hostile work
environment where supervisor placed hand on plaintiff’s thigh several times and
kissed the plaintiff). When viewing the evidence in its totality, the alleged ambiguous
statements and limited physical contact with Moore are not sufficient to constitute
actionable harassment. See, e.g., Adusumilli v. City of Chicago, 164 F.3d 353, 36162 (7th Cir. 1998)(finding that ambiguous comments and one isolated touching of the
plaintiff’s buttocks did not constitute actionable harassment.). Moore does not assert
that the alleged touching was done in a physically threatening or aggressive manner.
See Moser v. Indiana Dep't of Corr., 406 F.3d 895, 902 (7th Cir. 2005)(indicating a
court should consider factors such as “whether it is physically threatening or
Not every instance of sexual harassment in the workplace is sufficient to
constitute a hostile work environment. See Saxton, 10 F.3d at 537 (finding that
“[t]he conduct of [the plaintiff’s] superior was inappropriate and unprofessional” but
that “[n]onetheless, the record does not reasonably support an inference that the
misconduct Saxton has described was so serious or pervasive that it created a hostile
work environment”); Shephard v. Wal-Mart Stores E., LP, 2015 WL 3796006, at *4
(N.D. Ind. 2015)(concluding that while the alleged harasser’s “questions regarding
plaintiff's divorce and his practice of putting his arm around plaintiff each morning to
say hello went on for one or two years, this conduct is tinged with sexual innuendo,
at best, and not severe in the legal sense” and noting that the conduct was not
“physically threatening or humiliating”). When considering the evidence in its
entirety, neither the alleged pervasiveness nor the alleged severity of the alleged
conduct is sufficient to support a hostile work environment claim brought under the
IHRA. Therefore, Wal-Mart’s motion for summary judgment is granted.
Based on the foregoing analysis, Wal-Mart’s motion for summary judgment is
United States District Court Judge
Dated: February 8, 2017
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