Hoffner v. Barnhardt et al
ORDER granting in part and denying in part 35 Motion for Summary Judgment. Summary judgment is DENIED as to Counts One and Two; Summary judgment is Granted as to Count Three only. Signed by Chief Judge David R. Herndon on 7/11/2013. (kar)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ASSOCIATED LUMBER INDUSTRIES, INC.,
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Introduction and Background
Pending before the Court is defendant’s motion for summary judgment
(Doc. 35), and defendant’s reply to plaintiff’s response (Doc. 37).
Associated Lumber Industries, Incorporated (“Associated”), claims it is entitled to
summary judgment because it exercised reasonable care to prevent and correct
the sexually harassing behavior, and because plaintiff unreasonably failed to take
advantage of any preventive or corrective measures. Plaintiff opposes the motion
(Doc. 36), although she consents to the entry of summary judgment in count
three, conceding that it is encompassed by count two.
Plaintiff, Hillary Hoffner, filed her complaint (Doc. 2) against defendant and
David Barnhardt, her supervisor on March 16, 2012. Plaintiff’s complaint alleged
one count of sexual harassment and hostile work environment in violation of Title
VII, one count of sexual harassment in violation of the Illinois Human Rights Act
(“IHRA”), and one count of constructive discharge.
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In her complaint, plaintiff
alleges that Associated is an Illinois corporation, and she was employed by
Associated as a cashier from June 15, 2011 until her alleged constructive
discharge on August 22, 2011. Plaintiff alleges that she was sexually harassed by
her supervisor, David Barnhardt 1 and subjected to unwanted and unwelcome
attention from him. Plaintiff also alleges that she complained to Arthur Mize, the
General Manager over the facility in which she was employed. Plaintiff further
alleges that Associated did not, to her knowledge, have a policy in place to
address the sexual harassment and did not take appropriate measures to prevent
future occurrence of Barnhardt’s harassment. Plaintiff further alleges that due to
the sexual harassment and Associated’s failure to prevent the ongoing
harassment, she was forced to resign her position.
In count one, plaintiff alleges that she was subjected to unwelcome and
unwanted sexual harassment from her supervisor, in violation of Title VII, 42
U.S.C. § 2000(e) et seq.
Plaintiff claims defendant allowed a hostile work
environment in that the unlawful practices of which she complained were allowed
to continue after her complaints.
In count two, in violation of the IHRA, 775
ILCS 5/2-102(D), plaintiff reincorporates the same allegations as count one.
Summary judgment should be granted where “the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits, if
any, show there is no genuine issue as to any material fact and that the moving
On June 19, 2012, with plaintiff’s consent, the Court dismissed Barnhardt from
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party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The
moving party bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the record or affidavits that
demonstrate an absence of a genuine issue of material fact.
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). All justifiable inferences are to drawn in favor
of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
If the moving party meets its burden, the non-moving party has the burden
of presenting specific facts to show there is a genuine issue of material fact.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond
the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S.
at 324. In ruling on a motion for summary judgment, the non-moving party’s
evidence “is to be believed,” and all justifiable inferences drawn from it in the light
most favorable to the non-moving party. Hunt v. Cromartie, 526 U.S. 541, 552
(1999). Summary judgment in favor of the party with the burden of persuasion is
“inappropriate when the evidence is susceptible of different interpretations or
inferences by the trier of fact.” Id. at 553.
Sexual Harassment and Hostile Work Environment
Defendant first argues that plaintiff cannot prove employer liability because
she did not suffer a tangible employment action. Defendant further argues that
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because plaintiff did not suffer a tangible employment action, it is entitled to the
use of an affirmative defense known as the Faragher/Ellerth defense based on two
United States Supreme Court cases decided on the same day.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), clarified when an employer may claim an
affirmative defense against vicarious liability for an action committed by a
supervisor. In Ellerth, the Supreme Court held:
An employer is subject to vicarious liability to a victimized employee
for an actionable hostile environment created by a supervisor with
immediate (or successively higher) authority over the employee.
When no tangible employment action is taken, a defending employer
may raise an affirmative defense to liability or damages, subject to
proof by a preponderance of the evidence.
Ellerth, 524 U.S. at 765. The Court clarified that its holding applied equally to
the Faragher case as well. Id. at 764. There are two essential elements of the
affirmative defense: (1) the employer must show that it exercised reasonable care
to prevent and promptly correct any sexually harassing behavior; and (2) that the
plaintiff employee unreasonably failed to take advantage of any preventive or
corrective measures the employer provided, or to otherwise avoid harm. Id. at
Although plaintiff claims she was constructively discharged, defendant
If plaintiff was constructively discharged, then the harassment
ended in a tangible employment action and defendant is precluded from asserting
its affirmative defense based on the Faragher and Ellerth cases.
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For a plaintiff to prevail on a claim of sexual harassment based on hostile
work environment, she must establish that:
(1) she was subjected to unwelcome
sexual harassment; (2) the harassment was based on her sex; (3) the sexual
harassment unreasonably interfered with her work performance by creating an
intimidating, hostile or offensive work environment that affected seriously the
psychological well-being of the plaintiff; and (4) there is a basis for employer
liability. McPherson v. City of Waukegan, 379 F.3d 430, 437-38 (7th Cir. 2004)
(internal quotations and citations omitted).
Further, to prove that she was
subjected to a hostile work environment, Hoffner must demonstrate with
sufficient evidence that the conduct to which she was subjected was “so severe or
pervasive as to alter the conditions of employment and create an abusive working
environment.” Id. at 438. The McPherson court holds that to qualify as hostile,
the work environment must be “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.”
(internal quotations and citations omitted).
Moreover, to show that a hostile work environment resulted in her constructive
discharge, Hoffner must not only demonstrate that a hostile work environment
existed, but also that the abusive working environment was so intolerable that her
resignation was an appropriate response.
Id. at 440. Constructive discharge
denotes a situation “in which an employee is not fired but quits, but in
circumstances in which the working conditions have made remaining with this
employer simply intolerable.” Id.
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In examining plaintiff’s work environment before she claims she was
constructively discharged, the Court notes that plaintiff claims she was subjected
to what amounts to retaliatory behavior from Barnhardt after she reported her
claims of his sexual harassment to Mize. In her email to Mize, in which Hoffner
informed him that her work environment was intolerable and she was resigning
immediately, she described Barnhardt’s “exaggerated gestures and comments”
along with his “sarcastic remarks” and patronizing behavior.
references an encounter with Mize at the store two days after she reported the
alleged harassment to him. Hoffner claims she was crying and Mize ignored the
situation, inquiring how she was, but not reacting to her answer of “not too good.”
In fact, Mize’s notes from his initial meeting with Hoffner indicate that he told her
that he appreciated her not wanting anyone to “loose [sic] their job” and that
Barnhardt “is now earning what he is being paid and has become a productive
From these facts, the Court finds it is reasonable for plaintiff to perceive
that remaining in her position at Associated was intolerable, in that Barnhardt’s
retaliatory behavior and Mize’s seeming indifference to Hoffner’s misery, and
unwillingness to remove Barnhardt from his supervisory position over her, was
the only outcome of her reporting the sexual harassment.
claims that Associated had no policy to deal with sexual harassment complaints of
which she was aware.
Hoffner perceived that defendant did not exercise
reasonable care to prevent or correct the continuing harassment.
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Hoffner’s evidence, as the non-moving party, “is to be believed,” and all
justifiable inferences drawn from it in the light most favorable to her.
U.S. at 552.
Summary judgment in favor of the party with the burden of
persuasion is “inappropriate when the evidence is susceptible of different
interpretations or inferences by the trier of fact.” Id. at 553.
Here, Hoffner has alleged multiple instances that she was subjected to
unwelcome sexual harassment, based on her sex.
Hoffner alleged that the
harassment began on the day she was hired, when Barnhardt apologized to her in
advance for anything inappropriate he might do or say to her.
Hoffner’s complaint, Barnhardt continued to sexually harass her, making
comments to her about her body and what he would like to do to her, continually
asking her if “hairy fat men turned her on,” and ignoring plaintiff’s requests to
stop harassing her.
In addition, plaintiff claims the sexual harassment unreasonably interfered
with her work performance and created an intimidating, hostile or offensive work
environment that affected seriously her psychological well-being. Further, because
Mize did nothing to prevent Barnhardt from continuing to harass or retaliate
against Hoffner after she complained, there is a basis for employer liability.
Defendant concedes that after she complained to Mize, plaintiff was subject to
retaliatory action by Barnhardt, which it characterizes as “childish” but “not
enough to justify resignation.” The Court does not find that Hoffner unreasonably
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failed to take advantage of any preventive or corrective measures the employer
provided, or to otherwise avoid harm.
interpretations, creating a genuine issue of material fact, and summary judgment
is not appropriate on count one.
Violation of IHRA
Defendant argues that plaintiff did not properly file a charge of
discrimination with the Illinois Department of Human Rights (“IDHR”) and thus,
has no cause of action under the IHRA. Defendant claims that when plaintiff filed
her charge with the EEOC in St. Louis, Missouri, she did so on a form that
included the Missouri Commission on Human Rights, but not the IDHR. Plaintiff
disputes that her claim was not properly filed, calling the Court’s attention to 775
ILCS 5/7A-102. 775 ILCS 5/7A-102(A-1) states, in pertinent part: “If a charge is
filed with the Equal Employment Opportunity Commission (EEOC) within 180
days after the date of the alleged civil rights violation, the charge shall be deemed
filed with the Department [IDHR] on the date filed with the EEOC.”
In this case, it is undisputed that plaintiff filed her charge with the EEOC in
a timely manner. According to the statute, the EEOC is responsible for notifying
the IDHR. The Court takes note that the St. Louis District Office of the EEOC has
jurisdiction over the States of Kansas, Missouri, Nebraska, and Oklahoma, and
several counties in Illinois, including Union County in which Anna, Illinois is
located. Drawing all justifiable inferences in the light most favorable to Hoffner,
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the Court finds that plaintiff met her filing obligation with the IDHR, and denies
summary judgment on count two.
Based on the aforementioned reasons, the Court concludes genuine issues
of material fact remain for the trier of fact regarding whether plaintiff was
subjected to unwelcome and unwanted sexual harassment sufficient to support a
Title VII hostile work environment claim, and whether her claim was properly
filed with the IDHR. Further, the Court concludes genuine issues of material fact
remain for the trier of fact regarding whether plaintiff was constructively
discharged. Accordingly, defendant’s motion is DENIED as to both count one and
count two. Because the parties agree on the disposition of count three, the Court
GRANTS summary judgment as to count three only.
IT IS SO ORDERED.
Signed this 11th day of July, 2013.
Digitally signed by
David R. Herndon
United States District Court
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