Scurlock v. Penthouse International Entertainment Consultants IEC

Filing 62

MEMORANDUM AND ORDER, The Court GRANTS IRC's motion for summary judgment (Doc. 49 ) and DIRECTS the Clerk of Court to enter judgment accordingly. This renders MOOT Scurlock's motion to change venue (Doc. 57 ). Signed by Judge J. Phil Gilbert on 5/10/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES SCURLOCK,
Plaintiff,
v.

Case No. 15-cv-338-JPG-DGW

PENTHOUSE INTERNATIONAL
ENTERTAINMENT CONSULTANTS IEC,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion for summary judgment filed by defendant
IRC, LP (“IRC”) (misnamed in the complaint as Penthouse International Entertainment Consultants
IEC) (Doc. 49). Plaintiff Charles Scurlock has responded to the motion (Docs. 53 & 54), and IRC
has replied to that response (Doc. 55). Scurlock has filed a sur-reply in response to IRC’s reply
(Doc. 56). Pursuant to Local Rule 7.1(c), which states, “Under no circumstances will sur-reply
briefs be accepted,” the Court disregards Scurlock’s sur-reply brief.1
I.

Summary Judgment Standard
Summary judgment must be granted “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int’l-Ind., Inc., 211
F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most
favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See
The Court has reviewed the information in Scurlock’s sur-reply brief with an eye toward confirming
that Magistrate Judge Donald G. Wilkerson was correct in his assessment that Scurlock is competent
to represent himself. In other words, the Court was making sure that there was nothing material
omitted from Scurlock’s response brief but stated in his sur-reply brief that, had counsel been
appointed and included that information in the proper brief, would have been properly brought before
the Court. With the exception of the termination form for Scurlock’s termination, the Court has
found nothing in the sur-reply brief that would have been included in the response brief by competent
counsel. The Court has considered that termination form.
1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685
(7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the Court
that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712 F.3d 1166,
1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at trial, the moving
party may satisfy its burden of production in one of two ways. It may present evidence that
affirmatively negates an essential element of the non-moving party’s case, see Fed. R. Civ. P.
56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the
non-moving party’s case without actually submitting any evidence, see Fed. R. Civ. P. 56(c)(1)(B).
Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet its
strict burden, a court cannot enter summary judgment for the moving party even if the opposing party
fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th
Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon
the allegations contained in the pleadings but must present specific facts to show that a genuine issue
of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57; Modrowski, 712
F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere existence of “some
alleged factual dispute between the parties,” Anderson, 477 U.S. at 247, or by “some metaphysical
doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a
verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252.
II.

Facts
Construing the evidence and drawing all reasonable inferences in Scurlock’s favor, the
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evidence establishes the following relevant facts.
In April 2014, Scurlock began working as a receptionist host/private host/courtesy patrol
person for IRC, which was doing business as the Penthouse Club. He worked the daytime shift
Mondays, Tuesdays and Thursdays. At the time, IRC had an equal employment opportunity policy
(“EEO policy”) prohibiting, among other things, harassment and discrimination in the workplace
based on race and age. The EEO policy further states:
If an employee believes someone has violated this policy, the employee should bring
the matter to the attention of any member of management. If you do not feel
comfortable discussing your concerns with your Director, you may report your
concern to Micheal Ocello at [email address], [telephone number], or [telephone
number], or the Company’s outside counsel, Allan Rubin, at [email address] or
[telephone number]. The Company will promptly investigate the facts and
circumstances of any claim this policy has been violated and take appropriate
corrective measures.
EEO Policy, Employee Handbook 7 (Doc. 50-2 at 4). The EEO Policy also states:
If anyone believes that he/she is or has been unlawfully discriminated against or has
complaints of harassment, that person should report the alleged unlawful act to any
member of management, Company President Micheal Ocello at [email address],
[telephone number], or [telephone number], or the Company’s outside counsel, Allan
Rubin, at [email address] or [telephone number]. Any complaint of harassment or
discrimination should be brought to a management level employee above the level of
the person who is the subject of the Complaint. To the extent possible, the Company
will attempt to keep all reports of harassment or discrimination confidential on a
need-to-know basis. Upon receipt of any complaint of harassment or discrimination,
the Company will within a reasonable amount of time commence an investigation into
the allegations and, where appropriate, take prompt and effective remedial action,
either on an interim or permanent basis, reasonably designed to eliminate the
harassment or discrimination and prevent recurrences. Such action may include
discipline or discharge of the harasser or discriminator.
EEO Policy, Employee Handbook 10 (Doc. 50-2 at 7). Scurlock had a copy of IRC’s Employee
Handbook containing the EEO policy and was familiar with that policy.
Scurlock is African-American and was fifty years old when he was hired. Jim Lindsey
interviewed Scurlock, hired him, and was his immediate supervisor. From the beginning, Lindsey
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called Scurlock “stupid,” “dumb,” “special,” or “old” every time they worked the same shift.
Specifically, he called him old “a lot of times” beginning in May 2014. Scurlock Dep. at 72:22-23
(Doc. 50-1 at 35).
After finishing his shift at the Penthouse Club on November 20, 2014, Scurlock went home to
eat, change clothes and relax. Early the next morning, he returned to the area to patronize Pop’s
Nightclub, which was near the Penthouse Club. In the early morning of November 21, 2014,
Scurlock got into a dispute with a bouncer at Pop’s, the bouncer called the police, and the police asked
Scurlock to leave the premises. Outside in the parking lot, Scurlock ran into Larry Scott, one of
Scurlock’s coworkers at the Penthouse Club. Scott screamed to Scurlock, “N––––r [racially
derogatory term], you been written up,” Scurlock Dep. at 41:13 (Doc. 50-1 at 18), and then walked
back into the Penthouse Club. Up to that point, no one at the Penthouse Club had ever called
Scurlock that racially derogatory name.2
Later in the morning of November 21, 2014, Scurlock texted Lindsey to ask him why he was
being written up. Lindsey then called Scurlock, and Scurlock told him about his encounter with
Scott, including his use of the racially derogatory term, and complained about the names Lindsey had
called him, including “old.” Lindsey told Scurlock that he was not being written up and that he
In his response to IRC’s summary judgment motion, Scurlock denies IRC’s statement of fact that he
had never been called that racially derogatory name on other occasions. The Court disregards this
portion of Scurlock’s response because it contradicts his clear deposition testimony without any
plausible explanation of the contradiction. Scurlock Dep. at 60:11-14 (Doc. 50-1 at 27). The law is
well-established that “in general, parties may not ‘patch-up potentially damaging deposition
testimony’ with a contradictory affidavit.” Commercial Underwriters Ins. Co. v. Aires Envtl. Servs.,
259 F.3d 792, 799 (7th Cir. 2001)(citing Maldonado v. U.S. Bank, 186 F.3d 759, 769 (7th Cir. 1999)).
“Where deposition and affidavit are in conflict, the affidavit is to be disregarded unless it is
demonstrable that the statement in the deposition was mistaken, perhaps because the question was
phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible
explanation for the discrepancy.” Russell v. Acme-Evans Co., 51 F.3d 64, 67-68 (7th Cir. 1995)));
Lawson v. CSX Transp., Inc., 245 F.3d 916, 919 n. 4 (7th Cir. 2001). The Court will consider a
contradictory affidavit if the declarant satisfactorily explains the discrepancy in the testimony.
Commercial Underwriters, 259 F.3d at 799.
4
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should return to work. Scurlock said he would not return to work until something was done about the
name-calling. Lindsey said he could not do anything about Scott’s name-calling but promised that
this would never happen again. Scurlock told Larry he wanted to talk to another manager first, one
that was over the level of Lindsey.
Lindsey called Scurlock again the following day, November 22, 2014, and asked him to return
to work, but again Scurlock said he wanted to talk to another supervisor – one over Lindsey – before
returning to work.
Scurlock called Rich Westerheide, a management level employee Scurlock had gone to on
other occasions when he had had problems at work. Westerheide was not there when he called, so
Scurlock talked to Rich Overstreet, who was higher than Lindsey in management. He told
Overstreet about the names Lindsey and Scott had called him and that he wanted something done
about it. Overstreet said he would investigate the situation and get back to Scurlock.3
Following his phone conversations with Lindsey and Overstreet, Scurlock came away with
the impression he had been fired, so he did not return to work. Scurlock never heard anything more
from Overstreet.4
There is some suggestion the manager Scurlock spoke with was not Overstreet but someone else
whose name Scurlock did not remember. The identity of the manager, however, is not material to
the resolution of this motion.
4
In Scurlock’s response to IRC’s summary judgment motion, he states that he did not return to work
because he was fired on November 22, 2014, in a phone conversation. However, in his sworn
statement in his Illinois Department of Human Rights charge, he stated that he refused to come back
until something was done about the harassment and that he was constructively discharged because no
action was taken to prevent further harassment. Furthermore, there is no evidence either Lindsey or
Overstreet told Scurlock he was fired. In fact, Scurlock testified that Lindsey encouraged him to
come back to work, and Overstreet promised to conduct an investigation and get back to him. In
light of Scurlock’s sworn statement in his charge of discrimination regarding the reason he did not
come back to work and his deposition testimony regarding the content of his phone calls with Lindsey
and Overstreet, the Court will not credit his affidavit testimony that he was fired in a phone call on
November 22, 2014. As noted in footnote 1, without an explanation of these contradictory
statements, the Court need not consider the attempt to patch up Scurlock’s prior statements with his
affidavit.
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On November 23, 2014, Lindsey sent a text to Scurlock asking whether he would be at work
Monday and Tuesday. Scurlock did not show up for his scheduled shift on November 24, 2017, the
first day he was scheduled to work after the incident with Scott. On December 3, 2014, IRC
determined that Scurlock had quit his job and recorded the termination of his employment as a
“voluntary termination” due to his failure to report for work. Scurlock has not worked since that
time.
Scurlock exhausted his administrative remedies and filed this lawsuit on March 27, 2015. He
alleges IRC discriminated against him on the basis of his race and age and that the discrimination
resulted in his constructive discharge.
III.

Analysis
In its summary judgment motion, IRC argues that Scurlock cannot prove he was subject to a

hostile environment on the basis of his race because he only points to one use of a derogatory term in
the workplace and, similarly, cannot prove he was subject to a hostile environment based on age
because the Lindsey’s calling him “old” was not sufficiently severe or pervasive to support a cause of
action. IRC further argues that, even if the environment were hostile on the basis of an
impermissible factor, it is entitled to an affirmative defense because it was reasonably diligent in
preventing or correcting any harassing behavior and because Scurlock did not make use of IRC’s
corrective procedures. As for Scurlock’s claim of constructive discharge, IRC argues that the
conditions of Scurlock’s employment were not severe enough to support a constructive discharge
claim.
A.

Race Discrimination
1.

Hostile Environment

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits discrimination
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on the basis of race: “It shall be an unlawful employment practice for an employer to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s race .
. . .” 42 U.S.C. § 2000e-2(a)(1). The race discrimination prohibited by Title VII includes racial
harassment that creates a hostile work environment. See Beamon v. Marshall & Ilsley Trust Co., 411
F.3d 854, 863 (7th Cir. 2005); Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th Cir. 2004).
A hostile work environment is created by conduct that has “the purpose or effect of
unreasonably interfering with an individual’s work performance or creating an intimidating, hostile,
or offensive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). To
prevail on a racially hostile work environment claim, a plaintiff must establish “(1) that [his] work
environment was both objectively and subjectively offensive; (2) that the harassment was based on
[his] race; (3) that the conduct was either severe or pervasive; and (4) that there is a basis for employer
liability. Vance v. Ball State Univ., 646 F.3d 461, 469 (7th Cir. 2011), aff’d, 133 S. Ct. 2434 (2013);
accord Lambert v. Peri Formworks Sys., 723 F.3d 863, 868 (7th Cir. 2013).
Determining whether conduct is sufficiently severe or pervasive to constitute an objectively
hostile working environment is not an easy task. It must be judged by “‘looking at all the
circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Faragher v. City of Boca Raton, 524 U.S. 775,
787-88 (1998) (quoting Harris v. Forklift Sys., 510 U.S. 17, 22 (1993) (further internal quotations
omitted)); accord Lambert, 723 F.3d at 868. “[H]arassing conduct does not need to be both severe
and pervasive. One instance of conduct that is sufficiently severe may be enough.” Jackson v.
County of Racine, 474 F.3d 493, 499 (7th Cir. 2007) (internal citations omitted). However, “simple
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teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of employment.” Faragher, 524 U.S. at 788
(internal quotations and citations omitted).
For example, the Seventh Circuit Court of Appeals has found that calling a plaintiff “‘boy,’
‘black n––––r,’ and treat[ing] him harshly” was not enough to withstand summary judgment on a
hostile work environment claim. Nichols v. Michigan City Plant Planning Dep’t, 755 F.3d 594, 600,
601 (7th Cir. 2014). The Court of Appeals noted, “[W]hile referring to colleagues with such
disrespectful language is deplorable and has no place in the workforce, one utterance of the n-word
has not generally been held to be severe enough to rise to the level of establishing liability.” Id. In
contrast, the Court of Appeals has found summary judgment not warranted where there was evidence
that the plaintiff’s coworkers and supervisors directed a highly offensive racial epithet toward him on
multiple occasions, in a context where coworkers also openly advocated for white supremacy
movements and wrote racially offensive graffiti on the bathroom walls. Cerros v. Steel Techs., Inc.,
398 F.3d 944, 951 (7th Cir. 2005). In another case, the Court of Appeals found the plaintiff’s case
barely sufficient to withstand summary judgment where a top manager referred to certain workers as
“donkeys” in his presence at least five times over four years and called an African-American
coworker a “gorilla,” and that another supervisor told the plaintiff, while he was yelling and
screaming at the plaintiff, that he did not respect him because he was a “n––––r.” Lambert, 723 F.3d
at 865.
Scurlock has pointed to no harassment based on race other than Scott’s one time calling him a
racially derogatory term. For the same reasons cited in Nichols, the Court finds that Scurlock cannot
establish such a claim based on Scott’s one-time use of a derogatory term. While the term he used is
deeply offensive and was aimed directly at Scurlock, it was uttered once by a IRC employee who was
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not in Scurlock’s chain of command, outside of work hours and outside of the workplace. No
reasonable jury could find Scott’s one statement was sufficiently severe or pervasive to create an
objectively hostile work environment for Scurlock that effectively altered the terms and conditions of
his employment.
Because no reasonable jury could find Scurlock was subject to a hostile work environment
based on his race, there is no need to consider whether IRC is subject to liability for such a hostile
environment. IRC is entitled to summary judgment on this claim.
2.

Constructive Discharge

Furthermore, Scurlock cannot prevail on a claim that he was constructively discharged
because of a racially hostile work environment. To establish a constructive discharge claim, the
plaintiff must show “that he was forced to resign because his working conditions, from the standpoint
of the reasonable employee, had become unbearable.” Chapin v. Fort-Rohr Motors, Inc., 621 F.3d
673, 679 (7th Cir. 2010). The plaintiff must demonstrate that working conditions were more
egregious than those required to prove a hostile environment claim. Id. Since Scurlock has not
pointed to any evidence that could establish a racially hostile work environment, he also cannot
establish the intolerable conditions necessary to support a constructive discharge claim. IRC is
entitled to summary judgment on this claim.
B.

Age Discrimination
1.

Hostile Environment

The Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., prohibits
discriminating against an individual who is at least 40 years old with respect to the terms of his
employment based on the individual’s age. 29 U.S.C. §§ 623(a) & 631(a). The Seventh Circuit
Court of Appeals has assumed that such a prohibition includes a hostile work environment claim
9

based on age. Racicot v. Wal-Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005). IRC contends
the age-based conduct to which Scurlock was subject was not severe or pervasive enough to create an
objectively hostile working environment.
The standard for determining whether a work environment is hostile under the ADEA is the
same as under Title VII. See, e.g., Bennington v. Caterpillar Inc., 275 F.3d 654, 660 (7th Cir. 2001)
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)).
Taking into account all the circumstances, the Court finds that a reasonable jury could find
Scurlock was subject to conduct that was sufficiently severe or pervasive that it constituted an
objectively hostile work environment on the basis of his age. While Lindsey’s calling him old was
not severe, it was pervasive. It occurred every day that Scurlock was at work with Lindsey from
May to November 2014, and it was directed at him in his presence. Additionally, Lindsey paired the
term with other terms like dumb, stupid and special, and used “old” to indicate Scurlock lacked
intellectual capacity. He also called him old in front of other employees or supervisors, which was
humiliating to Scurlock. While this is a close call, the Court believes a reasonable jury could find
Lindsey’s conduct created an objectively hostile work environment based on age.
2.

Constructive Discharge

Scurlock cannot prevail on a claim that he was constructively discharged because of a hostile
work environment based on his age. As with a race-based constructive discharge claim, a plaintiff
seeking to prove an age-based constructive discharge claim must show more than simply a hostile
work environment. He must show that his working conditions were so intolerable that a reasonable
person would have felt compelled to resign. Bennington v. Caterpillar Inc., 275 F.3d 654, 660 (7th
Cir. 2001); Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). “Absent extraordinary
conditions, a complaining employee is expected to remain on the job while seeking redress. . . . [A]n
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employee who quits without giving his employer a reasonable chance to work out a problem has not
been constructively discharged.” Grube v. Lau Indus., 257 F.3d 723, 728 (7th Cir. 2001) (internal
citations and quotation marks omitted); accord Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429
(7th Cir. 2004).
While the age-related names Lindsey called Scurlock were certainly unpleasant and insulting,
no reasonable jury could find their use created a work environment that was intolerable such that he
was compelled to resign. Additionally, once Scurlock reported Lindsey’s conduct to Overstreet,
Scurlock did not remain on the job long enough to give IRC a reasonable chance to investigate his
complaint and resolve the issue. Instead, he announced several times that he would not return until
something was done about the harassment and, indeed, he did not return. In these circumstances, no
reasonable jury could find Scurlock was constructively discharged.
3.

Employer Liability

Invoking what has become known as the Faragher-Ellerth affirmative defense, IRC argues
that it cannot be liable for an age-based hostile work environment because it was reasonably diligent
in preventing and correcting the harassment and because Scurlock did not follow the proper
procedure for reporting harassment.
Where the harasser was the plaintiff’s supervisor, the employer is generally vicariously liable
for an actionable hostile environment created by a supervisor with authority over the victimized
employee. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus. v. Ellerth,
524 U.S. 742, 765 (1998). However, if the employer did not take any tangible employment action
against the employee, the employer may raise the Faragher-Ellerth affirmative defense to liability or
damages. Pennsylvania State Police v. Suders, 542 U.S. 129, 143 (2004); Faragher, 524 U.S. at
807-08; Ellerth, 524 U.S. 765. To succeed in its affirmative defense, the employer must show that
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(1) that it exercised reasonable care to prevent and correct promptly any harassing behavior, and (2)
that the employee unreasonably failed to take advantage of any preventive or corrective opportunities
provided by his employer or to otherwise avoid harm. Faragher, 524 U.S. at 807; Ellerth, 524 U.S.
at 765; Passananti v. Cook Cty., 689 F.3d 655, 670 (7th Cir. 2012).
The Faragher-Ellerth defense may be available to IRC because it took no tangible
employment action against Scurlock. In order to establish a tangible employment action, a plaintiff
must show a “quantitative or qualitative change in the terms or conditions of his employment that is
more than a mere subjective preference.” Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir.
2003); see Herrnreiter v. Chicago Housing Auth., 315 F.3d 742, 744-45 (7th Cir. 2002). “Tangible
employment actions are the means by which the supervisor brings the official power of the enterprise
to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a
company act.” Ellerth, 524 U.S.at 762. However, “not everything that makes an employee
unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that
an employee did not like would form the basis of a discrimination suit.” Murray v. Chicago Transit
Auth., 252 F.3d 880, 888 (7th Cir. 2001) (internal quotations, citations and ellipsis omitted). Actions
that do not significantly affect a plaintiff’s job responsibilities or benefits, or actions that cause mere
inconveniences, cannot be tangible employment actions. Id..
As the Court has noted above, there is evidence that Scurlock believed IRC terminated him in
a phone conversation with either Lindsey or Overstreet on November 22, 2014. However, he did not
raise a termination claim in his complaint other than in the form of constructive discharge, which the
Court has determined he cannot prove. Additionally, no reasonable jury could find IRC actually
terminated Scurlock in either phone conversation. Scurlock testified that Lindsey told him to come
back to work and that he would not get written up. Lindsey also sent him a text message the
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following day asking if he was going to report to work as scheduled. Scurlock also testified that
Overstreet said he would investigate Scurlock’s complaints and then get back to him. Scurlock told
both men that he would not return until something was done about the harassment, and then he failed
to show up for his next scheduled shift. In light of these facts, the Court believes no reasonable jury
could find Scurlock was involuntarily terminated. While IRC determined that Scurlock voluntarily
quit by not showing up to work on the next day he was scheduled to work, Scurlock has not alleged
that that determination was because of his age or race or that it was in retaliation for his complaints.
Thus, that employment status determination is not in issue in this case.
The Court has already determined that IRC did not constructively discharge Scurlock by
creating working conditions that were intolerable and that would make a reasonable employee feel
compelled to quit. There is no evidence of any other possible “quantitative or qualitative change in
the terms or conditions of his employment” that would constitute a tangible employment action.
Thus, IRC may be able to take advantage of the Faragher-Ellerth defense.
The evidence shows IRC was reasonably diligent in preventing harassing behavior. Merely
having a sexual harassment policy is not enough, by itself, to establish the first element of the
Faragher/Ellerth defense. Cerros v. Steel Techs., Inc., 398 F.3d 944, 953 (7th Cir. 2005).
However, the promulgation and use of a policy can show that an employer took reasonable care to
prevent harassment. Id.; Shaw v. AutoZone, Inc., 180 F.3d 806, 812 (7th Cir. 1999). Here, IRC had
an EEO policy providing multiple channels of reporting harassment – any member of management,
IRC’s president or its outside counsel – and provided multiple specific methods of contacting the
president and outside counsel. It educated its employees about the policy sufficiently that Scurlock
knew that under the policy he should report harassment to a management level employee. In fact,
when Scurlock had other problems (not the harassment at issue in this case), he felt free to contact
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Rich Westerheide, a member of management, and he reached out to Westerheide in this case,
although unsuccessfully. No evidence suggests IRC’s written policy was not carried out in practice
and was, in fact, just a sham. In fact, when Scurlock eventually observed the policy by calling a
member of management above Lindsey’s level, Overstreet informed him he would begin an
investigation of the complaints and would get back to him.
The evidence also shows IRC was reasonably diligent in responding to Scurlock’s complaints
to correct any harassment. As noted above, when Scurlock complained, Overstreet, informed
Scurlock he would begin an investigation. No evidence suggests Overstreet did not commence, or
would not have commenced, an investigation in a reasonable period of time had Scurlock not quit.
Once Scurlock stopped coming to work, there was no further need to pursue corrective measures to
protect him from harm.
Finally, there is the question of whether Scurlock unreasonably failed to take advantage of any
corrective opportunities provided or to avoid harm. There is no evidence Scurlock complied with
IRC’s EEO policy by complaining to a member of management above Lindsey’s level, or to outside
counsel, about Lindsey’s age-based harassment before November 22, 2014, when he talked to
Overstreet. No evidence supports the conclusion that this failure to report Lindsey’s conduct
pursuant to the EEO policy was reasonable.
In sum, based on the evidence presented, no reasonable jury could find that IRC did not
exercise reasonable care to prevent or correct age harassment or that Scurlock took advantage of the
preventive or corrective opportunities available to him through the EEO policy. Accordingly, IRC is
entitled to the protection of the Faragher-Ellerth affirmative defense for Scurlock’s age-based hostile
environment claim. The Court will therefore grant summary judgment to IRC on this claim.

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IV.

Conclusion
For the foregoing reasons, the Court GRANTS IRC’s motion for summary judgment (Doc.

49) and DIRECTS the Clerk of Court to enter judgment accordingly. This renders MOOT
Scurlock’s motion to change venue (Doc. 57) in which he asks the Court to hold proceedings in the
courthouse in East Saint Louis, Illinois, rather than Benton, Illinois. Since summary judgment is
granted, there will be no trial.
IT IS SO ORDERED.
DATED: May 10, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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