Case: 1:03-cv-05636 Document #: 1 Filed: 08/13/03 Page 1 of 7 PageID #:1
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOI~C'

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EASTERN DIVISION

'"' ·o ;/ CI :Jn'} CO

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

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Plaintiff,

)

)

v.

)

DtJr.I(ETEO

) )

CATERPILLAR INC., AUG 1 4 2003

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Defendant.

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CIVIL ACTION NO.

03C

v · ~lll-<·ru~.~. a··.m, , l~,',..l,..i.\.J.. Js·~·',~.."-.

COMPLAINT JURY TRIAL DEMAND
JUD\,;E Pl\\..LMEYER.

NATURE OF THE ACTION This is an action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a, to correct unlawful employment practices on the basis of sex and retaliation and to provide appropriate reliefto Karon Lambert ("Lambert"), a former employee of Caterpillar, Inc. ("Defendant") and a class of women who were adversely affected by such practices. Plaintiff, the U.S. Equal Employment Opportunity Commission (the "Commission"), contends that Defendant discriminated against Lambert and a class of women because of their sex by subjecting them to a pattern or practice of sexual harassment and by retaliating against them for asserting their Title VII rights all in violation of Title VII.
JURISDICTION AND VENUE 1. Jurisdiction of this court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 706(£)(1) and (3) and Section 707(e) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-

1

Case: 1:03-cv-05636 Document #: 1 Filed: 08/13/03 Page 2 of 7 PageID #:2
5(f)(l) and (3) and §2000e-6(e), and Section 102 of the Civil Rights Act of 1991, 42 U.S. C. §1981a.
2. The employment practices alleged to be unlawful were and are now being committed within the jurisdiction of the United States Oistl"iGt Court for the Northern District of Illinois, Eastern Division.
PARTIES. 3. Plaintiff, the Equal Employment Opportunity Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by Section 706(f)(l) and (3) and Section 707(e) ofTitle VII, 42 U.S.C. § 2000e-5(f)(l) and (3) and§ 2000e-6(e). 4. At all relevant times, Defendant has continuously been and is now doing business in the State of Illinois and the City of Aurora and has continuously had at least fifteen (15) employees. 5. At all relevant times, Defendant has continuously been an employer engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. § 2000e-(b), (g) and (h).
STATEMENT OF CLAIMS 6. More than thirty days prior to the institution of this lawsuit, Lambert filed a charge with the Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 7. Since at least 1999 Defendant has engaged in unlawful employment practices at its facility in Aurora, Illinois in violation of Sections 703(a)(1) and 704(a) of Title VII, 42 U.S. C. § 2000e-2(a)(l) and§ 2000e-3(a). These practices include, but are not limited to, engaging in
2

Case: 1:03-cv-05636 Document #: 1 Filed: 08/13/03 Page 3 of 7 PageID #:3
intentional discrimination against Lambert and a class of women by subjecting them to sexual harassment and retaliating against Lambert and a class of women for opposing the harassment. These practices include, but are not limited to, Lambert and a class of women being sexually harassed by a male supervisor and terminating Lambert and a class of women all in continuing violation of Sections 703(a)(l) and 704(a) of Title VII, 42 U.S.C. § 2000e-2(a) and§ 2000e-3(a).
8. From at least 1999 Defendant has engaged in a pattern or practice of failing to correct the sexual harassment and retaliation referenced in paragraph seven (7) above.
9. The effect of the practices complained of in paragraphs seven (7) and eight (8) above has been to deprive Lambert and a class of women of equal employment opportunities and otherwise adversely affect their status as employees because of their sex.
10. The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are intentional.
11. The unlawful employment practices complained of in paragraphs seven (7) and eight (8) above were and are done with malice or with reckless indifference to the federally protected rights of Lambert and a class of women.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of sex; B. Grant a permanent injunction enjoining Defendant, its officers, successors, assigns, and all persons in active concert or participation with it, from retaliating against any employee for participating in protected activity;
3

Case: 1:03-cv-05636 Document #: 1 Filed: 08/13/03 Page 4 of 7 PageID #:4

C. Order Defendant to institute and carry out policies, practices, and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices;

D. Order Defendant to make whole Lambert and a class of women by providing

appropriate back pay with pre-judgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices;

E. Order Defendant to make whole Lambert and a class of women by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described above, including, but not limited to, job search expenses;

F. Order Defendant to make whole Lambert and a class of women by providing compensation for past and future non-pecuniary losses, including emotional pain, suffering, inconvenience, loss of enjoyment oflife and humiliation;

G. Order Defendant to pay Lambert and a class of women punitive damages for its malicious and/or reckless conduct described, in amounts to be determined at trial;

H. Order Defendant and its successors to provide training to its officers, managers and employees regarding sexual harassment and retaliation in the workplace;

I.

Grant such further relief as the Court deems necessary and proper in the public

interest; and

J.

Award the Commission its costs in this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its Complaint.

4

Case: 1:03-cv-05636 Document #: 1 Filed: 08/13/03 Page 5 of 7 PageID #:5
Respectfully submitted, James Lee Deputy General Counsel Gwendolyn Young Reams Associate General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Supervisory Trial Attorney
Lauren G. Dreilinger Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 500 West Madison Street, Suite 2800 Chicago, Illinois 60661 (312) 353-7303
5

Case: 1:03-cv-05636 Document #: 1 Filed: 08/13/03 Page 6 of 7 PageID #:6

Civil Cover Sheet '• A

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l Y UNITED STATES DISTRICT COURT . .- ,, ,~
NORTHERN DISTRICT OF ILLINOiS:)-!: . ,"'

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Civil Cover Sheet' ·O ··;:, t:>. ·:/- .

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This automated JS-44 conforms generally to the manual JS-44 approved by the Judkili:l 'Conference of the United States in

September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet The

· information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required

by law. This form is authorized for use only in the Northern District oflllinois.

Plaintiff(s): EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
'County of Residence:

Defendant(s):CATERPILLAR INC.

C County of Residence:

0 oV:.

Plaintiff's Atty:

Lauren G. Dreilinger

Defendant's Atty:

Equal Employment Opportunity Commission 500 W. Madison, Suite 2800

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Chicago, IL 60661

312-353-7303

II. Basis of Jurisdiction:

1. U.S. Gov't Plaintiff

III. CitizenshiR of Princinl!l Parties (Diversity Cases Only)
Plaintiff:- N/A Defendant:- N/A

1. Original Proceeding

V. Nature of Suit:

442 Employment

VI. Cause of Action:

Title VII ofthe Civil Rights Act of 1964, as amended, 42 U.S.C. §

2000e et seq. ("Title VII"), and Title I of the Civil Rights Act of

1991, 42U.S.C. § 1981 a, to correct unlawful employment practices

on the basis of sex and retaliation.

VII. Reg]lested in...{;_om]llaint

Class Action:

Dollar Demand:

Jury Demand: Yes

VULThis case IS NO_I a refiling of a previously dismissed case.

Signature: .tk,u1.U\1;6L.~-- _ _ __ Date: _JvJ_lftiSL.131 2=Do,.__~~---
http://www.ilnd.uscourts.gov/PUBLIC/Forms/autojs44.cfm

8/J/03

Case: 1:03-cv-05636 Document #: 1 Filed: 08/13/03 Page 7 of 7 PageID #:7

In the Matter of

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS F; 'J:: J- [ li].
EASTERN DIVISION

Equal Employment Opportunity Commission Plaintiff,
V.
Caterpillar Inc., Defendant.

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F:7DOCKETED Case Number: r i: .: :: c·

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FOR: U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AUG 1 4 Z003

(A)
SIGNATUR~<d. ~

NAME Lauren G. Dreiling~r

FIRM Equal Employment Opportunity Commission

STREET ADDRESS 500 W. Madison, Suite 2800

CITY/STATE/ZIP
Chicago, IL
TELEPHONE NUMBER
312-353-7303

I 60661 FAX NUMBER 312-353-8555

E·MAILADDREss lauren.dreilinger@eeoc.gov

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDC No. 06274840

MEMBER OF TRIAL BAR?

D YES

NO

TRIAL ATIORNEY?

I

YES

NO

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NA Noelle C. Breiul:IID15TRA'I'E JUDUJIJ Ln v "~

FIRM Equal Employment Opportunity Commission

STREET ADDRESS 500 W. Madison, Suite 2800

CiTY/STATE/liP
Chicago, IL
TELEPHONE NUMBER
312-353-7582

I 60661 FAX NUMBER 312-353-8555

E·MAIL ADDRESs noelle.brennan@eeoc.gov

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDC No. 06228901

MEMBER OF TRIAL BAR?

YES

D NO ~

TRIAL ATIORNEY?

YES !!':! NO D

DESIGNATED AS LOCAL COUNSEL?

YES

D D NO

SIGNATURE

·(D)

lAME Jo m C. H~{clrickson

FIRM Eq J.al Employment Opportunity Commission
I~ETADDRES 500 W. Madison, Suite 2800

CITYIS""""" Chicago, IL
TELEPHONE NUMBER
312-353-8551

I 60661 FAX NUMBER 312-353-8555

E·MAIL ADDRESS J•Ohn.hendn• ckson@eeoc.gov

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
ARDCNo. 01187589

MEMBER OF TRIAL BAR?

YES

~

NO

D

TRIAL ATTORNEY?

YES

~

NO

D

DESIGNATED AS LOCAL COUNSEL?

D YES

NO

D

NAME FIRM

STREET ADDRESS

CITY/STATE/liP TELEPHONE NUMBER E-MAIL ADDRESS

I FAXNUMBER

JDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OF TRIAL BAR? TRIAL ATTORNEY? DESIGNATED AS LOCAL COUNSEL?

YES

D

YES

D

YES

D

D NO

D NO

D NO

17

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 Case: 1:03-cv-05636 Document #: 83 Filed: 06/01/05 Page 1 of 5 PageID #:515

CERTIFIED COPY
3Jn tf)t

Wniteb !State~ ~ourt of SPfiflf: f)

.ffor tbt ~tbtntf) qttrcuJ ..J

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No. 05-8006 EQUAL EMPLOYMENT OPPORTIJNITY COMMISSION,
v.

MICMAI!l W. COIIINI
CII.Cftl(, u.•. OIITRICT COURT
Plaintiff-Respondent,

CATERPILLAR, INC.,

Defendant-Petitioner.

Petition for Permission to Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division. No. 03 C 5636-Rebecca R. Pallmeyer, Judge.
SUBMmED APRIL 20, 2005-DECIDED MAY 27, 2005

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Karon Lambert, formerly employed in Caterpillar's plant in Aurora, lllinois, filed a charge with the EEOC claiming that she'd been fired for spurning her supervisor's sexual advances. After an investigation, the Commission notified Caterpillar that it had "reasonable cause to believe that Caterpillar discriminated against Lambert and a class of female employees, based on their sex." After the Commission's efforts at conciliation failed, it sued

Case: 1:03-cv-05636 Document #: 83 Filed: 06/01/05 Page 2 of 5 PageID #:516

2

No. 05-8006

Caterpillar under Title VTI, alleging that the company had discriminated against female employees at the Aurora plant. Caterpillar moved for summary judgment on the ground that the allegation of plant-wide discrimination was unrelated to Lambert's charge. The district judge denied the motion. Caterpillar asked the judge to certify her ruling for interlocutory appeal under 28 U.S.C. § 1292(b). She agreed because, as far as she knew, "the Seventh Circuit has not specifically addressed the question of whether a court may review the EEOC's investigation to determine whether a complaint filed on behalf of a group of workers is proper." She certified the following question: "In determining whether the claims in an EEOC complaint are within the scope of the discrimination allegedly discovered during the EEOC's investigation, must the court accept the EEOC's Administrative Determination concerning the alleged discrimination discovered during its investigation, or instead, may the court itself review the scope of the investigation?" We grant leave to appeal, and proceed to answer her question.
When a charge of discrimination is filed with the EEOC, the Commission must notify the alleged offender(s), investigate the charge, and if the investigation gives rise to a reasonable belief that the charge is true, may (with irrelevant qualifications) sue any of the alleged offenders. 42 U.S.C. § 2000e-5(f)(1). Caterpillar argues that the agency's reasonable-cause determination is judicially reviewable, citing such dicta as that the "EEOC may allege in a complaint whatever unlawful conduct it has uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint," EEOC v. Haroey L. Wainer & Associates, 91 F.3d 963, 968 (7th Cir. 1996), or that the Commission "may, to the extent warranted by an investigation reason-

Case: 1:03-cv-05636 Document #: 83 Filed: 06/01/05 Page 3 of 5 PageID #:517

No. 05-8006

3

ably related in scope to the allegations of the underlying charge, seek relief on behalf of individuals beyond the charging parties who are identified during the investigation." EEOC v. United Parcel Service, 94 F.3d 314, 318 (7th Cir. 1996). See also EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 840 n. 3 (6th Cir. 1994); EEOC v. Delight Wholesale Co., 973 F.2d 664, 668-69 (8th Cir. 1992); Harris v. Amoco Production Co., 768 F.2d 669, 684-85 (5th Cir. 1985); Lucky Stores, Inc. v. EEOC, 714 F.2d 911, 912 (9th Cir. 1983).
All these, however, are cases that either were filed by a private individual rather than by the Commission or that transpose uncritically language from such cases. For example, the statement in United Parcel that the claim sued upon must be "reasonably related" to the initial charge is copied from Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994), a suit by an individual, while the language in Wainer requiring a "reasonable nexus" between an EEOC suit and the initial charge can be traced through EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (6th Cir. 1975), and EEOC v. Kimberly-Clark Corp., 511 F.2d 1352, 1361 (6th Cir. 1975), to another private-party suit, Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125, 131 (6th Cir. 1971). No case actually holds that the scope of the EEOC's investigation is a justiciable issue in a suit by the EEOC, and Georator Corp. v. EEOC, 592 F.2d 765,767 (4th Cir. 1979), holds that it is not.
The difference between the two classes of case is that exhaustion of administrative remedies is an issue when the suit is brought by a private party but not when the Commission is the plaintiff. Were the private party permitted to add claims that had not been presented in the administrative charge filed with the EEOC, the Commission's informal procedures for resolving discrimination charges,

Case: 1:03-cv-05636 Document #: 83 Filed: 06/01/05 Page 4 of 5 PageID #:518

4

No. 05-8006

see 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.24, would be bypassed, in derogation of the statutory scheme. Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 375-76 (1979); Cable v. Ivy Tech State College, 200 F.3d 467, 476-77 (7th Cir. 1999); Anjelino v. New York Times Co., 200 F.3d 73, 93 (3d Cir. 1999). That is not an issue when the EEOC itself is the plaintiff, which is why a suit by the EEOC is not confined "to claims typified by those of the charging party," General Telephone Co. v. EEOC, 446 U.S. 318,331 (1980); see also EEOC v. Waffle House, Inc., 534 U.S. 279, 291 (2002); Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977);
In re Bemis, 279 F.3d 419, 422 (7th Cir. 2002), and why Caterpillar is mistaken to think that the EEOC's complaint must be closely related to the charge that kicked off the Commission's investigation."Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable." General Telephane
Co. v. EEOC, supra, 446 U.S. at 331. The charge incites the investigation, but if the investigation turns up additional violations the Commission can add them to its suit.
If courts may not limit a suit by the EEOC to claims made in the administrative charge, they likewise have no business limiting the suit to claims that the court finds to be supported by the evidence obtained in the Commission's investigation. The existence of probable cause to sue is generally and in this instance not judicially reviewable. See FTC v. Standard Oil Co. of California, 449 U.S. 232, 242-43 (1980); Stewart v. EEOC, 611 F.2d 679, 683 (7th Cir. 1979); Borg-Warner Protective Services Corp. v. EEOC, 245 F.3d 831, 835-36 (D.C. Cir. 2001).

Case: 1:03-cv-05636 Document #: 83 Filed: 06/01/05 Page 5 of 5 PageID #:519

No. 05-8006 A true Copy:
Teste:

5
#~~~~~~u C erk of the United States Court of
Appeals for the Sev'!nth Circuit

USCA-02-C-0072-5-27-05

 
 Case: 1:03-cv-05636 Document #: 41 Filed: 09/22/04 Page 1 of 13 PageID #:258
Mhtutl'Qrder Form (06/S1")
United States District Court, Northern District of Illinois

Name of Assigned Judge or Magistrate Judge
CASE NUMBER

Re~a R. Pallmeyer
CY' 03 c 5636

Silting Judge if Other than Assigned Judge
DATE

9/22/2004

CASE TITLE
MOTION:

EEOC vs. Caterpillar Inc.
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party pia mUff, and (b) state bneflythe nature of the motion being presented,]

DOCKET ENTRY:

(!) 0

Filed motion of [use listing in "Motion" box above.]

(2)

0

Brief in support of motion due ___.

(3)

0

Answer brief to motion due_ _ _. Reply to answer brief due_ _ _.

(4)

0

Ruling/Hearing on ___ set for ___ at _ __

(5)

•

Status hearing set for 10/6/2004 at 9:30A.M..

(6)

0

Pretrial conference[held/continued to] [set for/re-set for] on ___ set for ___ at ___.

(7)

0

Trial[set for/re-set for] on ___ at ___.

(8)

0

[Bench/Jury trial] [Hearing] held/continued to _ _ at ___.

(9)

0

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] 0 FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(!) 0 FRCP4!(a)(2).

(10) •

[Other docket entry] Enter Memorandum Opinion And Order. Caterpillar's motion for partial

summary judgment (Doc. No. Il-l) is denied. The EEOC will be permitted to proceed on its sexual

harassment claims on behalf of women who worked with Robert Garcia at Caterpillar's Aurora, Illinois

facility .

• (II)

[For further detail see order attached to the original minute order.]

I--
I--
~
I-I-I--

No notices required, advised in open court. No notices required. Notices mailed by judge's staff. Notified counsel by telephone. Docketing to mail notices. Mail AO 450 form. Copy to judgefmagistrate judge.

number of notices
_SEP 222664
date docketed.
w
docketing deputy ini\als
\
9/22/2004

courtroom

ETV

deputy's

initials

date mailed notice ETV

mailing deputy initials

Doctnile.nt Number

Case: 1:03-cv-05636 Document #: 41 Filed: 09/22/04 Page 2 of 13 PageID #:259

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

CATERPILLAR INC.,

)

)

Defendant.

)

No. 03 C 5636 Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

The Equal Employment Opportunity Commission ("EEOC") has filed this class action lawsuit

against Defendant Caterpillar Inc., alleging a pattern and practice of sexual harassment in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Complaint arises out of

a Charge of Discrimination filed by Karon Lambert, a former employee of Caterpillar, in which she

alleged that her supervisor sexually harassed her and then terminated her employment when she

rebuffed his advances. The charge did not purport to raise any "pattern or practice" claims, but the

EEOC seeks in this case to represent a "class of female employees." Asserting that this lawsuit

is limited by the scope of Ms. Lambert's charge, Caterpillar seeks partial summary judgment on the

EEOC's class-based allegations. For the reasons set forth below, the motion is denied.

BACKGROUND

Karon Lambert worked for Caterpillar as an Industrial Hygiene & Safety Supervisor at the company's Aurora, Illinois facility. (Def. 56.11J6.)1 Throughout her employment, she reported to

Robert Garcia, Caterpillar's Safety & Security Manager. (ld.1J7.) On February 5, 2002, Lambert

filed a Charge of Discrimination with the EEOC alleging that Garcia terminated her employment on

January 3, 2002 because she rejected his sexual advances. (/d. 1J1J6, 8, 9.) The charge did not

Defendant's Local Rule 56.1 Statement of Material Facts as to Which There is No

Genuine Issue is cited as "Def. 56.1 1J_."

~\

Case: 1:03-cv-05636 Document #: 41 Filed: 09/22/04 Page 3 of 13 PageID #:260

allege that Garcia or any other Caterpillar employee had sexually harassed or retaliated against any other named female employees, though it did state generally that Garcia "advised me [Lambert] which ... employees would 'sleep with me' if given an opportunity"; that Garcia said Lambert was "a part of his 'harem"'; and that Garcia "would make comments about women in the office and identify those who had 'good looking boobs."' (/d. 111 0; Pl. 56.1 Resp. 111 0; Charge of Discrimination, Ex. A to Pl. 56.1 .)'
On February 6, 2002, the EEOC sent Caterpillar a Notice of Charge of Discrimination ("Notice") regarding Lambert's charge. The Notice had an "X" marked in the box indicating that Lambert "claims to be aggrieved," but did not have a similar mark indicating that she was "filing on behalf of another." (Def. 56.1111112, 13.) Caterpillar responded to Lambert's charge on March 5, 2002, denying the allegations and submitting affidavits from three female employees- Ergonomics Coordinator Jessica Hardy, Safety Statistician Jennifer Loge!, and Ergonomics Intern Vickie Pittenger-all of whom denied that Garcia had acted unprofessionally or inappropriately towards them. (/d.11119-21; Hardy, Loge!, and Pittenger Affs., Exs. B, C, and D to Def. 56.1; Statement of Position, Ex. 3 to Miller Aff., at CAT0061-0063.) Caterpillar claims that "[a]t no time did [the company] believe that the EEOC was investigating any class-type allegations." (/d.111117, 18.)
The EEOC insists that on May 15, 2002, Investigator Kathleen Leaver told two Caterpillar managers, Sharon Hoerr, Corporate Employment Programs, and William Miller, Labor Relations Representative, that women other than Lambert had complained about Garcia's sexual harassment. Specifically, Leaver assertedly reported that Judy Green Sawyer, an employee of Vallens Safety Supply, an independent contractor that operated the Safety Store at Caterpillar's Aurora facility, told Leaver during an interview on March 14, 2002, that Garcia had sexually

as to Rule 56.1

15W61.2_h1i.cS"htaTtehTmehreeenEitsoENfOAoCdGd'seitRniouenisnapleoFnIasscsetusteoRiDseqecufietiernidndgaanstht'"esPDlL. oe5cn6ai.a1l lRoRuf elSesup5m.6.1m11aS_rty.a"JteuPmdlgaeminntetiofnfftEMisEacOtietCerida'slaFLsoa"ccPatls.l

2

Case: 1:03-cv-05636 Document #: 41 Filed: 09/22/04 Page 4 of 13 PageID #:261

harassed her on multiple occasions. 3 (/d. 1127; Pl. 56.1 Resp. 1118; Leaver DecI. 11117, 8; Pl. 56.1
1112; Leaver Notes of 3/14/02, Ex. 2 to Leaver Decl., at E096.) In addition, the EEOC notes that as part of its investigation, it requested "all employee complaints made against Mr. Garcia, including those made by contracted employees," and not just complaints raised by Lambert. In response to that request, Caterpillar disclosed that Ann Marie Logan, a manager trainee with Vallens Safety Supply, had alleged that Garcia had brushed against her breasts, making her feel uncomfortable: According to Leaver, Logan told her during an April 30, 2002 interview that Garcia had also "touched Melanie [Hatland], Judy [Green Sawyer], [and] Dena [Behrens]." (Def. 56.1 111125-27, 29; Pl. 56.1 Resp.111136, 39, 45; Leaver Notes of 4/30/02, Ex. 1 to Leaver Decl., at E088; Pl. 56.1111115, 16.)
Miller says that Logan admitted during Caterpillar's investigation of the complaint that she did not know whether Garcia's conduct was inadvertent or intentional. (Def. 56.11128; Miller Aff. 1116.) Leaver insists, however, that Logan told her during the April30, 2002 interview that she had
notified Caterpillar that Garcia's actions were intentional. (Pl. 56.1 Resp. 11 28; Leaver Notes of
4/30/02, Ex. 1 to Leaver Decl.) In any event, after investigating Logan's complaint, Caterpillar removed Garcia from his responsibility for the Safety Store on or about February 25, 2000, "as a precautionary measure." (Def. 56.11130; Answers to Questionnaire, Ex. 4 to Miller Aff.) Logan reportedly told Leaver, however, that after about a month, Garcia started going into the store again "but would bring security with him and smirk at Logan." (Pl. 56.1 Resp. 1130.)

3

Caterpillar objects to this evidence, and to other statements offered by the EEOC,

as inadmissible hearsay and as statements that are not based on personal knowledge.

(Defendant's Response to Plaintiff EEOC's Local Rule 56.1 Statement of Additional Facts, at 1-3.)

To the extent the court will consider only whether the EEOC may proceed with a pattern and

practice claim, and not whether it has in fact established one, these objections are overruled.

4

According to Caterpillar, Garcia allegedly "brushed his hand across [Logan's]

breasts"; the EEOC says Garcia "rubbed up against her breast three times in the safety store."

(Def. 56.11128; Pl. 56.1 Resp. 1128.)

3

Case: 1:03-cv-05636 Document #: 41 Filed: 09/22/04 Page 5 of 13 PageID #:262

On May 15, 2002, the EEOC interviewed Garcia, Hardy, and Logel at Caterpillar's Aurora facility5 Hardy and Logel denied that Garcia had ever acted inappropriately towards them and generally failed to corroborate Lambert's allegations against him. (Def. 56.1 1111 32, 33; Pl. 56.1 Resp.1133.) On September 13, 2002, the EEOC issued its Determination of Lambert's charge, finding that "the evidence obtained in the investigation establishes reasonable cause to believe that Caterpillar discriminated against Lambert and a class of female employees, based on their sex, female, in that they were subjected to sexual harassment and retaliation, including discharge." (!d. 11 35; Ex. 5 to Miller Aff.) The Determination did not identify any female employees other than Lambert who had allegedly been subjected to sexual harassment or retaliation. (/d. 11 37.) Caterpillar claims that the Determination letter constituted its first notice of class-wide Title VII allegations. (!d. 111136, 39, 45.)
On August 13, 2003, the EEOC filed this lawsuit alleging that Caterpillar subjected Lambert and "a class of female employees" to a pattern and practice of sexual harassment and retaliation since at least 1999. (Def. 56.1111142, 43.) The Complaint does not identify by name any female employees besides Lambert who were subjected to sexual harassment and retaliation. (/d.1147.)
DISCUSSION Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(c). In determining whether there is a genuine issue of fact, the court must view the evidence and draw all reasonable inferences in favor of the party opposing the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986); Bennington v. Caterpillar Inc., 275 F.3d 654, 658 (7th Cir. 2001 ). The court's function in ruling on a motion for summary judgment is not

5

The parties do not explain why Leaver did not interview Pittenger.

4

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to weigh the evidence, but rather to determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249. Where factual matters are in dispute, the court is required to credit the nonmovant's version of events. Hostetler v. Quality Dining, Inc., 218 F.3d 798, 802 (7th Cir. 2000).
Caterpillar seeks partial summary judgment on the EEOC's pattern and practice claim, arguing that (1) there is no reasonable nexus between Lambert's charge and the pattern and practice allegations; (2) the pattern and practice claim did not grow out of the EEOC's investigation of Lambert's charge; and (3) pattern and practice claims are not appropriate in sexual harassment cases. The court addresses each argument in turn. A. Reasonable Nexus
Title VII establishes several prerequisites to the EEOC's filing suit in federal court: (1) a timely charge of discrimination; (2) employer notification and an investigation; and (3) if reasonable cause is found, an attempt to eliminate the offending practice through "conference, conciliation, and persuasion." EEOC v. Harvey L. Wainer & Assocs., 91 F.3d 963, 968 (7th Cir. 1996). If conciliation fails, the EEOC may commence a civil action and may allege "whatever unlawful conduct it has uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations in the complaint." /d. See also 42 U.S.C.§ 2000e-5. ·
Caterpillar argues that the EEOC cannot assert pattern or practice allegations in this case because it did not first file a Commissioner's charge raising such claims. (Def. Mem., at 3-5.)6 Title VII provides that "the Commission shall have authority to investigate and act on a charge of a pattern or practice of discrimination, whether filed by or on behalf of a person claiming to be
aggrieved or by a member of the Commission." 42 U.S.C. § 2000e-6(e). In Caterpillar's view,
"[b]ecause [Lambert's] charge was not a pattern and practice charge, the Commission has no

6

Defendant's Memorandum of Law in Support of its Motion for Partial Summary

Judgment is cited as "Def. Mem., at_."

5

Case: 1:03-cv-05636 Document #: 41 Filed: 09/22/04 Page 7 of 13 PageID #:264
authority to act on that charge by alleging a pattern or practice in this lawsuit." (Def. Mem., at 5) (citing Wainer, 91 F.3d 963.)
In Wainer, the EEOC filed a pattern and practice lawsuit based on a charge of discrimination filed by Patricia G. Shepard. 91 F.3d at 965. It is not clear whether that charge alleged a pattern and practice claim, but the "tactical decision" to rely on Shepard's allegations turned out to be problematic because the EEOC "admitted in its response to Wainer's motion that it had failed to make any determinations with regard to Shepard's charge." /d. at 969-70. The Seventh Circuit explained that:
EEOC puts the cart before the horse by suggesting that it does not need an independently sufficient charge in order to file a lawsuit and obtain the discovery through which it may uncover these additional instances of discrimination. This argument recalls the aphorism that discovery is not to be used as a fishing expedition.... We do not propose to limit in any fashion EEOC's investigations into allegations of discrimination as envisioned by Congress when it expanded EEOC's enforcement powers in the 1972 amendments to Title VII. However, these investigations may not be accomplished through a process of discovery that follows a complaint based upon an insufficient charge of discrimination. /d. at 971-72. See also EEOC v. Jil/ian's of Indianapolis, IN, Inc., 279 F. Supp. 2d 974 (S.D. Ind. 2003) (allowing the EEOC to pursue pattern or practice claim arising from four individual charges filed against Jillian's Indianapolis, but finding that a nationwide class was not reasonably anticipated in the EEOC's investigation of those charges). In this case, Caterpillar does not dispute that the EEOC determined that Lambert and a "class of female employees" were subjected to sexual harassment and retaliation. In other words, the EEOC is basing its class allegations on a valid, underlying charge of discrimination and a finding of reasonable cause. Compare Wainer, 91 F.3d at 971 ("EEOC virtually conceded in its motion for reconsideration that it has no valid charge upon which to base a complaint"). Nothing in Wainer supports Caterpillar's insistence that the underlying charge must allege a pattern or practice of discrimination in order to support such allegations in federal court. Rather, Wainer recognizes that the EEOC may allege in a complaint "whatever unlawful conduct it has uncovered
6

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,•
during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations," ld, at 968 (citing EEOC v. United Parcel Serv., 860 F.2d 372, 374 (1Oth Cir. 1988) (fact that original plaintiff settled his claim did not prevent the EEOC from challenging discrimination affecting unidentified members of a known class)).
Caterpillar argues that pursuant to EEOC v. United Air Lines, Inc., 287 F.3d 643 (7th Cir. 2002), "there is no reasonable nexus between an individual charge of discrimination and an allegation of class-wide discrimination." (Def. Mem., at 7.) In United Air Lines, the EEOC sought to enforce an administrative subpoena issued during the course of its investigation into a flight attendant's allegations of national origin and sex discrimination. /d. at 646. The flight attendant claimed that the airline failed to make contributions to the French social security system on her behalf. /d. at 654. In its subpoena, however, the EEOC asked for information about all benefits "with respect to all United employees residing abroad." !d. The court found that nothing in the charge suggested systemic discrimination with respect to life, health, disability, or leave benefits, and stated that "[a)llowing the EEOC to conduct such a broad investigation would require us to disregard the Congressional requirement that the investigation be based on the charge." /d. at 655. The court noted that if the EEOC did discover evidence of a pattern of discrimination with respect to the additional benefits, it could file a Commissioner's charge and proceed accordingly. /d. at 655 n.7.
Unlike in United Air Lines, the EEOC here is pursuing a class-based sexual harassment and retaliation claim that is directly related to Lambert's allegations of similar wrongdoing. Caterpillar insists that it had no notice that the EEOC was investigating class-wide allegations because Lambert's charge did not indicate that she was "filing on behalf of another" or assert any claims against anyone other than Garcia. (Def. Mem., at 8.) The court agrees that to the extent the EEOC's administrative investigation did not uncover any allegations of sexual harassment or retaliation relating to anyone other than Garcia, the EEOC may not now pursue such claims on
7

·.

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.•

behalf of a class. See, e.g., Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 501 (7th Cir. 1994) ("the EEOC charge and the complaint must, at minimum, describe the same conduct and implicate the same individuals"). The EEOC may, however, "seek relief on behalf of individuals beyond the charging parties who are identified during the investigation." EEOC v. Dial Corp., 156 F. Supp. 2d 926, 935 (N.D. Ill. 2001) (quoting EEOC v. United Parcel Serv., 94 F.3d 314, 318 (7th Cir. 1996)).
Caterpillar argues that it was denied the opportunity to conciliate the class claims as provided by statute. (Def. Mem., at 5.) Caterpillar has not presented any evidence regarding the EEOC's conciliation efforts, however, much less evidence demonstrating that the agency failed to make "a sincere and reasonable effort to negotiate." Dial, 156 F. Supp. 2d at 940 (quoting EEOC v. Prudential Fed. Sav. and Loan Ass'n, 763 F.2d 1166, 1169 (10th Cir. 1985)). (See a/so Determination, Ex. 5 to Miller Aff.) (inviting Caterpillar to engage in conciliation efforts by submitting proposed terms).
The court is satisfied that there is a reasonable nexus between Lambert's charge and the pattern and practice allegations in this case. See Dial, 156 F. Supp. 2d at 937 (finding reasonable nexus between charge alleging that individual was the victim of a sexually hostile work environment and EEOC complaint alleging a pattern or practice of tolerating sexual harassment). Caterpillar's motion for partial summary judgment is denied. The court will permit EEOC to pursue sexual harassment and retaliation claims with respect to women who worked with Garcia at Caterpillar's Aurora facility. B. Allegations "Grown Out" of EEOC Investigation
Caterpillar next claims that the pattern and practice allegations did not grow out of the EEOC's investigation of Lambert's charge, and that the EEOC has "sued first and hopes to determine the scope ofthe 'class' later." (Def. Mem., at 8-10.) Caterpillar insists that it had no idea
8

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'·

that the EEOC was investigating a pattern or practice of discrimination and that, in any event, the investigation did not uncover any such systemic discrimination. (Def. Mem., at 8; Def. Reply, at
5-f
As noted, Lambert's initial charge did not allege that any other women had been sexually harassed by Garcia. In addition, Caterpillar submitted affidavits from three women who denied that Garcia had behaved inappropriately towards them, and two of those women (Hardy and Logel) affirmed those sentiments during an interview with EEOC Investigator Leaver on May 15, 2002. At the same time, Leaver interviewed Judy Green Sawyer on March 14, 2002, and reportedly learned that Garcia had repeatedly brushed up against her breasts with his hand, arms, and elbows, and that Sawyer had been written up and then transferred when she complained. (Leaver Notes of 3/14/02, Ex. 2 to Leaver Decl., at E096.) In addition, the EEOC specifically asked for information relating to "all employee complaints made against Mr. Garcia, including those made by contracted employees," and Caterpillar disclosed that Ann Marie Logan ofVallens Safety Supply had complained about Garcia brushing his hands across her breasts. When Leaver interviewed Logan on April 30, 2002, she said that she had been fired for poor performance shortly after she complained about Garcia, and that he had also "touched Melanie [Hatland], Judy [Green Sawyer], [and] Dena [Behrens]." (Leaver Notes of 4/30/02, Ex. 1 to Leaver Decl., at E085, E088.)
Caterpillar claims that Logan admitted she did not know whether Garcia's conduct was inadvertent or intentional, but Leaver's notes indicate that Logan thought he deliberately touched her breasts. (Leaver Notes of 4/30/02, Ex. 1 to Leaver Decl., at E086.) Caterpillar did investigate the complaint and remove Garcia from his responsibility for the Safety Store, but Logan told Leaver that after about a month, Garcia started going into the store again "but would bring security with him and smirk at Logan." (Pl. 56.1 Resp. 1J30; Leaver Notes of 4/30/02, Ex. 1 to Leaver Decl., at

7

Defendant's Reply Memorandum in Support of its Motion for Partial Summary

Judgment is cited as "Def. Reply, at_."

9

Case: 1:03-cv-05636 Document #: 41 Filed: 09/22/04 Page 11 of 13 PageID #:268
·-
E086.) As for Caterpillar's knowledge that the EEOC was investigating these additional complaints, the EEOC claims that on May 15, 2002, Leaver told Caterpillar managers Sharon Hoerr and William Miller about Sawyer's allegations, and that on May 21, 2002, Leaver told someone at Caterpillar that "there is a lot of activity going on in [Caterpillar's] plant that is questionable." (Leaver Notes of 5/21/02, Ex. 6 to Leaver Decl.)
The court finds sufficient evidence that the EEOC found reasonable cause to believe that Caterpillar was engaging in a pattern or practice of sexual harassment and retaliation based on interviews with Caterpillar and Vallens Safety Supply employees. See Dial, 156 F. Supp. 2d at 939 (finding no reason to doubt that the EEOC issued its reasonable cause determination based on its review of sexual harassment complaints "as well as other evidence"). Whether the evidence actually sufficed to establish reasonable cause is not a proper subject for review. /d. ("reasonable cause determination is not subject to judicial review"); Wainer, 91 F.3d at 968 n.3 ("determination of reasonable cause is only an administrative prerequisite to a court action and has no legally binding significance in subsequent litigation"). Thus, Caterpillar has not presented any basis for concluding that the EEOC's class-based allegations did not grow out of its investigation into Lambert's charge. C. Viability of Pattern or Practice Claims in Sexual Harassment Cases
Caterpillar's final argument - that pattern or practice theories are not viable in sexual harassment claims- merits little discussion. Caterpillar concedes that the EEOC does not have to bring pattern or practice cases under FED. R. CIV. P. 23, General Tel. Co. of the Northwest, Inc. v. Equal Employment Opportunity Comm'n, 446 U.S. 318 (1980), but argues that like class actions, pattern or practice claims are only appropriate in "challenging a policy of general application that adversely impacts a class of readily identifiable individuals." (Def. Mem., at 11.) In Caterpillar's view, sexual harassment cases are inherently individualized and do not implicate such general
10

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policies. (ld.) Courts in this district, however, have routinely rejected this argument. See, e.g., Dial, 156 F. Supp. 2d at 946 (collecting cases); EEOC v. Mitsubishi Motor Mfg. of America, Inc., 990 F. Supp. 1059, 1070 (C.D. Ill. 1998) ("[t]his Court does not need to make a great leap of faith to state the obvious: Title VII authorizes a pattern or practice action for sexual harassment"). As these courts explain, pattern or practice claims do not turn on individual experiences; rather, "[t]he existence of a company's policy of tolerating sexual harassment is the basis for pattern or practice liability." Mitsubishi, 990 F. Supp. at 1074.
Caterpillar insists that Dial and Mitsubishi are not controlling. Unlike this case, Caterpillar says, Mitsubishiwas based upon a Commissioner's charge and therefore comports with 42 U.S.C. § 2000e-6(e); Dial, which took no account of that provision, must be disregarded. (Def. Mern., at 13-14.) The court has already rejected the argument that pattern or practice claims require an underlying pattern or practice charge and declines to ignore precedent on that issue. See Wainer, 91 F.3d at 968 (EEOC may allege in complaint "whatever unlawful conduct it has uncovered during the course of its investigation, provided that there is a reasonable nexus between the initial charge and the subsequent allegations"). Caterpillar's remaining objections similarly repeat arguments previously addressed and rejected by this court. (Def. Mem., at 13-16.) The court finds Dial and Mitsubishi persuasive and sees no reason to depart from their reasoning in this case.
Equally unavailing is Caterpillar's claim that the bifurcated proceeding described in Mitsubishi, addressing first, a pattern or practice of sexual harassment, and second, individuals' entitlement to relief, violates the Seventh Amendment. (Def. Mem., at 15-16.) See Mitsubishi, 990 F. Supp. at 1070-82. The Seventh Circuit recently found that "[c]ertifying a class for injunctive purposes, while handling damages claims individually, does not transgress the seventh amendment." Allen v. International Truck and Engine Corp., 358 F.3d 469, 471 (7th Cir. 2004). In addition, until discovery in this case is completed, the court declines to decide, as a matter of law, that the EEOC cannot establish a pattern or practice of sexual harassment and retaliation.
11

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(Def. Reply, at 8-13) (arguing that "the agency has too few incidents to support a pattern or practice claim"). The EEOC's lawyers, like lawyers who represent private parties, are bound by the requirements of Rule 11, and the court presumes counsel have adhered to those requirements in filing their complaint.
CONCLUSION For the reasons stated above, Caterpillar's motion for partial summary judgment (Docket No. 11-1) is denied. The EEOC will be permitted to proceed on its sexual harassment claims on behalf of women who worked with Robert Garcia at Caterpillar's Aurora, Illinois facility.
ENTER:

Dated: September 22, 2004

United States Distnct Judge

12

 
 Case: 1:03-cv-05636 Document #: 90 Filed: 11/02/05 Page 1 of 4 PageID #:537

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

) CIVIL ACTION NO. 03 C 5636

)

v.

) JUDGE PALLMEYER

) MAGISTRATE JUDGE LEVIN

CATERPILLAR INC.,

)

)

Defendant.

)

)

PROTECTIVE ORDER

Pursuant to Fed. R. Civ. P. 26(1), it is hereby ordered that:

I. The purpose of this Agreed Protective Order is to protect against the unnecessary

disclosure of confidential and/or proprietary information. All information protected by this

Order will be referred to as "Confidential Information." Confidential Information is defined as:

(a) earnings information, tax information, beneficiary information, financial

information, medical information, social security numbers, dismissal letters, performance

reviews, disciplinary documents, and all documents related to complaints and/or investigations

of sexual harassment;

(b) non-publicly available documents or information regarding any charge or

allegation of sexual harassment from any current or former employee of Caterpillar;

(c) non-publicly available documents or information relating to Caterpillar's trade

secrets, finances, marketing strategies, sales strategies, security details, plant and equipment

design and layout.

2. Documents that contain Confidential Information shall be designated and marked

as "Confidential." To the extent that any document containing Confidential Information is

CHI 10941111.2

Case: 1:03-cv-05636 Document #: 90 Filed: 11/02/05 Page 2 of 4 PageID #:538
exchanged during discovery without being marked "Confidential," the parties will identify such Confidential Information by Bates number.
3. Confidential Information shall not be used for any purpose other than prosecuting or defending the above-captioned action and shall be disclosed only to the persons identified in Paragraph 4 below.
4. Confidential Information shall be maintained in confidence by the receiving party and shall not be disclosed to any person except:
a. The parties' attorneys (including in-house counsel), and those with a need to know within Caterpillar;
b. the Court; c. employees of the parties' attorneys; d. witnesses or potential witnesses may review their own records, records
that refer specifically to them, and any Confidential Materials that they prepared or which were distributed to them in the normal course of Caterpillar's business; and e. expert witnesses or consultants expressly employed or retained by the attorneys or a party to this litigation to whom it is necessary to disclose Confidential Materials for the purpose of prosecuting or defending this litigation. 5. Any person or entity to whom Confidential Information is disclosed in accordance with this Protective Order should be given a copy of this Order and is hereby advised that they may use Confidential Information solely in connection with the prosecution or defense of this litigation, and are hereby ordered that they shall not disclose such Confidential Information to any other person or entity (except as permitted above) or use such information for any other purpose in violation of the terms of this Protective Order. 6. Confidential Information may be used in all pre-hearing discovery proceedings, such as depositions, and any documents containing Confidential Information may be filed with
2
CHI 10941111.2

Case: 1:03-cv-05636 Document #: 90 Filed: 11/02/05 Page 3 of 4 PageID #:539
the Court as necessary in the normal course oflitigating this action, such as in the form of exhibits to support or oppose summary judgment. Documents containing Confidential Information also may be used in all other pre-hearing proceedings, at hearing, and on appeal of this case.
7. Once a document containing Confidential Information is filed in the public record or is otherwise admitted as an exhibit during any hearing, the information contained in that document will no longer be considered "Confidential Information" for purposes of this Order.
8. No filing under seal, or any other designation as a restricted document, is to be permitted of any document containing Confidential Information without previously-obtained Court approval.
9. Within 60 days after the completion of this litigation (including the exhaustion of appeals and/or the expiration of any consent decree), all Confidential Information, and all copies of documents containing Confidential Information, shall be destroyed or returned to the producing party.
I0. Nothing in this Order shall bar or otherwise restrict any attorney for any party from rendering advice to his client and/or prosecuting or defending this case.
II. This Order does not limit the right of any party to object to the scope of discovery in the above-captioned action, nor does this Order constitute a determination of the admissibility or evidentiary foundation for the documents or a waiver of any party's objections thereto.
3
CHI 10941111.2

Case: 1:03-cv-05636 Document #: 90 Filed: 11/02/05 Page 4 of 4 PageID #:540 12. The Court retains final authority to determine what is or is not a "Confidential"
document and to remove the "Confidential" designation from any document governed by this Order as necessary to protect the public interest.
IT IS SO ORDERED. Dated:_....../J=--:.dV...:___I-4 ,.....:2-::...:D,__<l.=..S"_ _ __
4
Clll 10941111.2

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. CATERPILLAR INC.,
Defendant.

) ) ) ) ) ) No. 03 C 5636 ) ) Judge Rebecca R. Pallmeyer ) )

MEMORANDUM OPINION AND ORDER

On February 2, 2002, Karon Lambert filed a charge of discrimination against her employer,

Caterpillar Inc. (“Defendant”), with the Equal Employment Opportunity Commission (“EEOC” or

“Plaintiff”). At that time, Lambert was employed at Defendant’s facility in Aurora, Illinois. This

action arises out of the EEOC’s subsequent investigation into sexual harassment allegedly

occurring at that facility. The EEOC brings sexual harassment claims on behalf of five current

Caterpillar employees—Virginia Early, Sandy Irvin, Lillie Johnson, Wendy Hollenback-Smithburg,

and Roxanne Tucker—and sexual harassment and retaliation claims on behalf of two former

Caterpillar employees—Karon Lambert and Diana Gomez.1 Defendant now moves for partial

summary judgment. Defendant seeks summary judgment on all claims brought on behalf of Early,

Gomez, Irvin, Johnson, Hollenback-Smithburg, and Tucker. Defendant does not now seek

summary judgment on the sexual harassment and retaliation claims that Plaintiff brings on

Lambert’s behalf, but it does seek summary judgment on any claim for punitive damages in favor

of Lambert. As explained here, Defendant’s motion for summary judgment is granted in part and

denied in part.

1

As Defendant observes, since the original filing of this lawsuit, the EEOC has

abandoned its claim that Defendant subjected Lambert and a class of women to a pattern or

practice of sexual harassment. (Defendant’s Memorandum of Law in Support of its Second Motion

for Partial Summary Judgment (“Def. Mem.”) at 2.) The EEOC has also abandoned the claims of

a number of other employees originally identified as class members. (Def. Mem. at 2.)

BACKGROUND2 1. Defendant’s Aurora Facility & Workforce
All of the events giving rise to this action took place at Defendant’s facility in Aurora, Illinois, which is devoted primarily to manufacturing and assembling large earth-moving equipment. (Def. LR 56.1 Stmt. ¶ 6.) The Aurora facility is composed of four main buildings and occupies almost 400 acres. (Id. ¶ 7.) Approximately one-third of the employees at the Aurora facility are salaried and work in clerical, technical, professional, and managerial positions. (Id. ¶ 8.) The remaining employees are hourly workers who are engaged in various aspects of the manufacturing process. (Id.) These hourly employees are represented by the United Auto Workers, Local 145 (the “union” or the “UAW”) and, under the terms of the collective bargaining agreement between Caterpillar and the union, these workers fall into two classes—full-time and supplemental. (Id. ¶ 10.) Full-time workers are regular, non-temporary employees who are subject to all of the benefits and obligations of the labor agreement; they are covered by a progressive discipline policy and can only be fired for just cause. (Id. ¶ 11.) Supplemental employees are hired to work on a temporary, though sometimes indefinite, basis. (Id. ¶ 12.) Unlike full-time employees, supplemental employees can be fired at any time for any reason, have limited grievance rights under the labor agreement, and are not protected by provisions of the labor agreement that require Caterpillar to engage in progressive discipline. (Id. ¶ 13.) 2. Defendant’s Sexual Harassment Policies & Training
Because it is relevant to Caterpillar’s affirmative defense, and to Plaintiff’s claim for punitive damages, the parties have devoted considerable attention to Caterpillar’s practices and policies

2

The court derives the background facts from the following: Defendant’s Rule 56.1

Statement of Material Facts as to Which There is no Genuine Issue Supporting Defendant’s Second

Motion for Partial Summary Judgment (“Def. LR 56.1 Stmt.”); EEOC’s Response to Defendant’s

Rule 56.1 Statement of Material Facts Supporting Defendant’s Second Motion for Partial Summary

Judgment (“Pl. LR 56.1 Resp.”); Plaintiff EEOC’s Local Rule 56.1(b)(3)(B) Statement of Additional

Facts (“Pl. LR 56.1 Stmt.”); Defendant’s Response to Plaintiff’s EEOC’s Local Rule 56.1(b)(3)(B)

Statement of Additional Facts (“Def. LR 56.1 Resp.”).

2

concerning workplace harassment. From at least 1996 to 2000, Caterpillar maintained and published a policy that prohibited sexual harassment. (Id. ¶ 14.) The policy in place between 1998 and 2000 provide that an employee who believes that he or she has been sexually harassed should report the conduct to one of four people: (1) his or her supervisor, (2) his or her manager, (3) the labor relations and personnel service manager, or (4) the corporate EEO coordinator. (Id. ¶ 15; Aurora Facility’s Sexual Harassment Policies from 1998-2000, Ex. C. to Def. LR 56.1 Stmt.)3 Since 2000, Caterpillar has maintained and published a “prohibited harassment” policy that expanded upon its earlier policy to prohibit all forms of harassment, including sexual harassment. (Def. LR 56.1 Stmt. ¶ 16; Aurora Facility’s Prohibited Harassment Policies from 2000 to present, Ex. D to Def. LR 56.1 Stmt.) Similarly to the earlier policy, the policy issued in 2004 instructs workers who believe they have been harassed to notify either the area supervisor, the department manager, the human resources manager, or the corporate EEO manager. (Def. LR 56.1 Stmt. ¶ 18.) In addition to those individuals, the 2005 and 2006 policies provide that employees can report harassment to local human resources staff, as well. (Id. ¶ 19.) Caterpillar’s sexual harassment and prohibited harassment policies state that Caterpillar will not tolerate retaliation against an employee who reports or participates in an investigation of sexual harassment. (Id. ¶ 21.) The policies also explain that an employee who believes he or she has been harassed may file a charge with the Illinois Department of Human Rights or the Illinois Human Rights Commission; the 2005 and 2006 policies tell employees of their right to file a charge with the EEOC. (Id. ¶ 20.)

3

Citing the testimony of John Futterer, Caterpillar’s labor relations manager, Plaintiff

asserts that supervisors are required to report allegations of sexual harassment to their own

supervisors, who are then required to report those allegations to the labor relations department.

(Pl. LR 56.1 Stmt. ¶ 21.) Futterer’s testimony does not establish that Caterpillar actually requires

communication in this manner. (Deposition of John Futterer at 92-93, Ex. 2 to Pl. LR 56.1 Stmt.)

In any case, Bill Miller, the labor relations representative, testified that Caterpillar managers or

supervisors do have a reporting obligation, and must report allegations of harassment directly to

the labor relations department or “up through their line organization.” (Deposition of Bill Miller at

50-53, Ex. W to Def. LR 56.1 Stmt.)

3

Since at least 1996, Caterpillar had established procedures for processing employee complaints regarding equal employment matters. (Id. ¶ 22; Complaint Procedure, Ex. E to Def. LR 56.1 Stmt.) Also since 1996, Caterpillar has maintained an equal employment opportunity (“EEO”) policy announcing that the Aurora facility is to be a harassment-free work environment. (Def. LR 56.1 Stmt. ¶ 23; Aurora Facility EEO Policy Statement, Ex. F to Def. LR 56.1 Stmt.) These harassment policies, as well as government-required anti-discrimination posters, have been posted in at least one spot of high visibility in every major building at the Aurora facility since 1996; they have also been posted in locked glass display cases at major facility entrances, at least one of which all employees pass when they walk into work. (Def. LR 56.1 Stmt. ¶¶ 25-27.)
In addition to the posters, Caterpillar communicated with its employees by way of printed publications. In 1996, Caterpillar published a booklet for employees called What You Should Know About Sexual Harassment in the Workplace, which reprints Caterpillar’s sexual harassment policy and provides guidance to employees on how to recognize and handle sexual harassment and the consequences of such harassment. (Id. ¶ 28; What You Should Know About Sexual Harassment in the Workplace, Ex. G to LR 56.1 Stmt.) From 1996 to 2000, this booklet was distributed to each new employee during his or her orientation. (Def. LR 56.1 Stmt. ¶ 40.) It provides that when an employee discloses information concerning an incident of harassment, supervisors are to immediately report the incident to their facility EEO coordinator or local human resources manager. (Pl. LR 56.1 Stmt. ¶ 23.) That same year, Caterpillar published another booklet for employees, Working at Caterpillar, which contains its EEO policy and warns employees that failure to comply with the company’s policies and procedures, including the sexual harassment policy, may lead to disciplinary action. (Def. LR 56.1 Stmt. ¶ 29; Working at Caterpillar, Ex. H. to Def. LR 56.1 Stmt.) A revised booklet, What You Should Know About Caterpillar’s Prohibited Harassment Policy, was distributed to employees in 2001; this booklet discusses Caterpillar’s policies against sexual harassment and retaliation in depth. (Def. LR 56.1 Stmt. ¶¶ 30-31; What You Should Know About
4

Caterpillar’s Prohibited Harassment Policy, Ex. I to Def. LR 56.1 Stmt.) From 2001 to the present,

this booklet was also distributed to each new employee during orientation. (Def. LR 56.1 Stmt.

¶ 40.) Caterpillar also distributes its Code of Worldwide Business Conduct, which affirms that the

company obeys laws prohibiting discrimination, that Caterpillar promotes an environment free of

intimidation and harassment, and that its employees have a responsibility to report harassment and

will not be subject to retaliation for doing so. (Id. ¶¶ 32-38; 2000 Code of Worldwide Business

Conduct, Ex. J to Def. LR 56.1 Stmt.; 2005 Caterpillar Worldwide Code of Conduct, Ex. K to Def.

LR 56.1 Stmt.)

Caterpillar has conducted a number of training sessions for its employees that included

training on sexual harassment. Among the training sessions that Caterpillar has conducted at its

Aurora facility are the following:

•

Since 1996, all new employees at the Aurora facility attend an orientation program on their

first day. (Def. LR 56.1 Stmt. ¶ 39.) At this orientation, Caterpillar’s harassment policies are

reviewed with the attendees and the new employees are informed that these policies are

posted throughout the facility. (Id. ¶ 41.)

•

Since 1996, employees have been required to attend another week-long training program

three months into their employment. A portion of that training program is devoted to

harassment training. (Id. ¶¶ 43-44.)

•

The facility has conducted a new supervisor orientation since 1996 for newly-hired or

promoted supervisors; at this orientation, Caterpillar reviews its harassment policies and

explains to the supervisors their role with respect to complaints of harassment. (Id. ¶¶ 45-

47.)

•

In March 1996, all salaried and management employees at the Aurora facility were required

to attend a diversity training called “Synergy From Others,” which included a discussion on

behaviors that can give rise to complaints of sexual harassment. (Id. ¶ 48.) This training

was repeated for hourly employees in March of 1997. (Id. ¶ 52.)

•

In November 1996, all of the supervisory and management employees at the Aurora facility

were required to attend a two-hour sexual harassment training course titled “Maintaining A

Harassment-Free Work Environment.” (Id. ¶¶ 49-50.) Attendees were given the What You

Should Know About Sexual Harassment in the Workplace booklet. (Id. ¶ 50.)

•

In January 1998, all salaried and management employees at the Aurora facility were

required to attend an eight-hour diversity training, which included sexual harassment

training. (Id. ¶ 53.)

5

•

Bill Miller, the labor relations representative, conducted an updated sexual harassment

training for managers in certain buildings at the Aurora facility in October 1999. (Id. ¶ 54.)

•

In early 2000, hourly employees at the Aurora facility were required to attend a training

course called the “Diversity Diner,” which covered the need to be sensitive to diversity,

including gender differences, in the workplace. (Id. ¶ 55.)

•

Supervisors at the Aurora facility were required to attend a training course titled “What the

Supervisor Needs to Know About Sexual Harassment” in March 2000, which covered

Caterpillar’s policies and procedures, what behaviors constitute sexual harassment, and

how supervisors should respond to complaints of harassment. (Id. ¶ 56.)

•

In 2001, management employees at the Aurora facility took part in a training program called

“Valuing People” that covered diversity issues, including gender differences, in the

workplace. (Id. ¶ 57.)

•

An all-employee meeting was held at the Aurora facility in 2002 at which time the employees

saw a video on prohibited harassment in the workplace and discussed Caterpillar’s

prohibited harassment policy. (Id. ¶ 58.)4

•

In 2003-2004, Caterpillar held a facility-wide prohibited harassment training, which covered

its prohibited harassment policy and policy of non-retaliation. (Id. ¶ 59.) During the course,

Caterpillar reissued its What You Should Know About Sexual Harassment in the Workplace

booklet. (Id.)5

•

In 2005, another all-employee training was held at the Aurora facility on the Caterpillar Code

of Conduct, which includes a commitment to a harassment-free environment. (Id. ¶ 60.)6

In addition to conducting training sessions, the Aurora facility’s security department

conducts “sweeps” to identify and remove any inappropriate materials. (Id. ¶ 61.) These sweeps

4

Plaintiff disputes Defendant’s statement of fact to the extent it implies that all

employees attended this 2002 meeting. (Pl. LR 56.1 Resp. ¶ 58.) Plaintiff is correct that the

Declaration of William Arbogast, the only source cited to support Defendant’s statement, does not

establish that all employees actually attended these meetings; Arbogast states that only that he was

responsible for coordinating the meeting. (Declaration of William C. Arbogast, Ex. MM to Def. LR

56.1 Stmt.)

5

Again, Plaintiff correctly notes that the Declaration of Alan Wolff, the only source

cited to support Defendant’s statement, states only that Wolff was responsible for conducting this

training, not that all employees actually did attend it. (Declaration of Alan Wolff, Ex. NN to Def. LR

56.1 Stmt.)

6

Plaintiff contends that Defendant’s cited evidence, Bill Miller’s Declaration, does not

establish foundation for his knowledge that all employees attended this training in 2005. (Pl. LR

56.1 Resp. ¶ 60.) The court agrees; while it is undisputed that the 2005 training was held for all

employees, the basis for Miller’s assertion that all employees actually attended the training is not

evident from his declaration. (Declaration of Bill Miller ¶ 35, Ex. GG to Def. LR 56.1 Stmt.)

6

occur not less than every eight weeks and more often if requested by the labor relations or operations departments. (Id.)7 3. Alleged Sexual Harassment of Current and Former Caterpillar Employees
The parties have set forth extensive facts related to the alleged harassment of Virginia Early, Diana Gomez, Sandy Irvin, Lilly Johnson, Wendy Hollenback-Smithburg, and Roxanne Tucker. The court presents the relevant facts concerning each of these individuals within the text of the opinion that follows.
DISCUSSION A. Summary Judgment Standard
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1125 (7th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party’s favor. Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). The moving party has the initial burden to show that the evidence is insufficient to establish a material element of the non-moving party's case. Celotex Corp., 477 U.S. at 322-23. If the moving party meets this burden, the non-moving party must then “come forward with specific facts showing there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the evidence supporting the non-moving party's claim is insufficient for a reasonable jury

7

Plaintiff disputes that sweeps occurred every eight weeks, but cites testimony from

Lillie Johnson stating only that she saw inappropriate materials at various work stations from 1988

until she left Caterpillar in November 2001. (Pl. LR 56.1 Resp. ¶ 61.) Johnson’s experience casts

doubt on the effectiveness of Defendant’s practice of conducting sweeps, but her testimony does

not contradict Defendant’s assertion that sweeps were in fact conducted regularly.

7

to return a verdict in its favor, the court will grant summary judgment. Id. B. Title VII Claims for Hostile Work Environment Sexual Harassment
Title VII prohibits an employer from discriminating “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). It is implicit in this provision that an employer may be liable “if an employee’s work environment is discriminatorily hostile or abusive.” Phelan v. Cook County, 463 F.3d 773, 782-83 (7th Cir. 2006) (citing Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006)). To establish a prima facie case of hostile work environment sexual harassment, an employee must establish that:
(1) she was subjected to unwelcome sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (2) the harassment was based on her sex; (3) the sexual harassment had the effect of unreasonably interfering with her work performance in creating an intimidating, hostile, or offensive working environment that seriously affected her psychological well-being; and (4) a basis for employer liability exists.
Phelan, 463 F.3d at 783 (citation omitted). Sexual harassment is actionable under Title VII if it is “‘both subjectively and objectively so severe or pervasive’” that it alters the conditions of the plaintiff's employment and creates an abusive work environment. Whittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005) (quoting Wyniger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir.2004)). Both the victim and a reasonable person must perceive the environment as “hostile or abusive.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). In determining whether a workplace is objectively hostile, the court considers the totality of the circumstances, including: the frequency and severity of the discriminatory conduct; “‘whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.’” See Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23).
Employers are strictly liable for harassment by a supervisor. Rhodes v. Ill. Dep't of Transp.,
8

359 F.3d 498, 505 (7th Cir. 2004) (citation omitted). A supervisor is “someone with the power to directly affect the terms and conditions” of the allegedly harassed individual’s employment; the court does not consider an employee who merely has the “authority to oversee aspects of another employee’s job performance” to be a supervisor for Title VII purposes. Id. at 506 (citation omitted). If the harassed employee did not suffer a “tangible employment action,” such as a discharge, demotion, or undesirable reassignment, the employer may assert the Ellerth/Faragher affirmative defense to avoid liability. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher, 524 U.S. at 807; Phelan, 463 F.3d at 783 (citing Faragher, 524 U.S. at 807). To succeed on this affirmative defense, the employer must establish that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that the “employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S. at 807; Phelan, 463 F.3d at 783 (citing Faragher, 524 U.S. at 807). No affirmative defense is available, however, if the employee suffered a “tangible employment action” as a part of the alleged harassment. Faragher, 524 U.S. at 808 (citing Ellerth, 524 U.S. at 762-63); Phelan, 463 F.3d at 784-85.
If the individual responsible for the harassment is another employee but not a supervisor, the employer is liable if it was negligent in discovering or remedying the harassment. Rhodes, 359 F.3d at 506. In other words, an employer is liable for harassment by a coworker if the employer “‘knew or should have known’ about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice.” Wyninger, 361 F.3d at 976 (quoting Berry v. Delta Airlines, Inc., 260 F.3d 803, 811 (7th Cir. 2001)).
In its motion for summary judgment, Defendant argues that the record does not establish that the terms and conditions under which Early, Irvin, Johnson, Hollenback-Smithburg, Tucker, or Gomez worked were substantially altered by severe or pervasive sex-based harassment, or that Gomez’s 2004 dismissal was in retaliation for any protected conduct. (Def. Mem. at 2.) Moreover,
9

Defendant argues, there is no dispute that it acted “reasonably and promptly to correct inappropriate conduct that violated its widely publicized prohibited harassment policies when complaints were raised.” (Id. at 2-3.) Plaintiff contends that questions of fact exist as to whether these six employees were subject to a sexually hostile work environment and whether Defendant terminated Gomez in retaliation for complaining about harassment. (Plaintiff’s Memorandum of Law in Opposition to Defendant’s Second Motion for Partial Summary Judgment (“Pl. Response”) at 1.) The court considers Plaintiff’s claims on behalf of Early, Irvin, Johnson, Hollenback-Smithburg, Tucker, and Gomez in turn.
1. Virginia Early
a. Factual Background
Virginia Early began working for Caterpillar in January 1994 as a “fabrication specialist”; she was initially assigned to work the second shift. (Def. LR 56.1 Stmt. ¶ 62.)8 During her employment with Caterpillar, Early has always worked in Building G, with the exception of a few occasions on which she was assigned to work elsewhere. (Id.) In July 2001, Early was transferred to the third shift. (Id. ¶ 64.) She remained on the third shift for eighteen to twenty-four months and then transferred to the first shift because she wanted to work during the day. (Id. ¶ 65.) Today, Early remains employed as a fabrication specialist on the first shift. (Id. ¶ 66.) At the time of the alleged incidents of sexual harassment, Early was working on the second shift in Building G. (Id. ¶ 71.)
It is undisputed that Early understood, prior to 2000, that Caterpillar had a policy prohibiting harassment in the workplace. Early recalls having received a document discussing Caterpillar’s sexual harassment policy at some point, has viewed copies of the prohibited harassment policy on bulletin boards at the Aurora facility, and recalls attending training on the harassment policy and

8

The Aurora facility operates twenty-four hours a day, five days a week and

employees work in three shifts. (Miller Decl. ¶ 8.) The first shift runs from 7:18 am to 3:18 pm, the

second shift from 3:18 pm to 11:18 pm, and the third shift from 11:18 pm to 7:18 am. (Id.)

10

receiving a list of names and telephone numbers of persons in the labor relations department whom she could call to complain of harassment. (Id. ¶¶ 67-70; Pl. LR 56.1 Stmt. ¶ 1.)

Early claims to have been harassed by a security guard in July 2001; she does not know the name of the security guard, though she remembers that he spoke with an accent. (Def. LR 56.1 Stmt. ¶ 72.) Early recalls that the guard moved in various parts of the plant and was not permanently located in the area where she worked. (Id.) According to Early, the guard made comments to her of a sexual nature on multiple dates between July 19, 2001 and July 25, 2001:

•

On July 19, 2001, the guard asked Early to sleep with him. (Id. ¶ 74.) Early felt fearful as

a result of this encounter and left her station to tell “Bruce,” a co-worker, though not a

supervisor, that the guard was bothering her. (Pl. LR 56.1 Stmt. ¶ 3.)

•

On July 21, 2001, the guard asked Early for sex three times. (Def. LR 56.1 Stmt. ¶ 75.)

While the guard was at her work station, her supervisor, George Dutton, also came to her

work station for an unrelated reason. (Id.) Early did not inform Dutton of the guard’s

conduct. (Id. ¶ 76.)

•

On July 23, 2001, the security guard again asked Early for sex and came to her work area

three times before lunch. (Id. ¶ 77.) During one of her conversations with the guard, he told

her that in Romania, where he is from, he could rape her and nothing would be done about

it. (Id. ¶ 78.)

•

On July 25, 2001, Early told the guard not to talk to her and warned him that he might get

in trouble for sexual harassment. (Id. ¶ 79.)

In total, according to Early, the guard asked her to have sex with him seven times and he also told her “what his wife did not do for him.” (Pl. LR 56.1 Stmt. ¶ 2; Deposition of Virginia Early at 23, Ex. U to Def. LR 56.1 Stmt.) Early had no conversations with the guard after July 25, 2001. (Def. LR 56.1 Stmt. ¶ 73.) Other than the conversations with this particular guard, Early admits that no one at Caterpillar has ever harassed her. (Id. ¶ 80.)

Early testified that she told two of her co-workers, Bruce and Jimmy Ray, that the security guard was “bothering” her. She also called the labor relations department and reported the guard’s comments to someone who identified himself as “Doug”; Early cannot recall when, exactly, she

11

made this phone call. (Id. ¶ 81; Pl. LR 56.1 Stmt. ¶¶ 4-5; Early Dep. at 27.) Doug Howell, who worked as a labor relations assistant at the time, recalls having once received a complaint from Early, though he did not recall its substance. (Pl. LR 56.1 Stmt. ¶¶ 9-10; Def. LR 56.1 Resp. ¶ 10; Declaration of Doug Howell ¶ 1, Ex. HH to Def. LR 56.1 Stmt.; Deposition of Doug Howell at 14243, Ex. X to Def. LR 56.1 Stmt.) Early testified that she told Doug that she did not feel safe on her shift, that the security guard was soliciting sex from her, and that he told her if he was in Romania he could rape her and nothing would be done about it. (Pl. LR 56.1 Stmt. ¶ 6.)9 Doug asked Early whether she was intimate with the security guard and told her that someone would come out to talk to her about the incident. (Id. ¶ 7.)10 Howell recalls taking notes of Early’s complaint but does not remembering doing anything else in response to her complaint. (Id. ¶ 11.)11 It is undisputed that after Early reported the comments by the security guard, she was never approached by him or harassed again. (Def. LR 56.1 Stmt. ¶ 83.) Although Early could not remember when she reported the security guard’s comments by calling the labor relations department, (Early Dep. at 27), the

9

Defendant is correct that some of Plaintiff’s assertions regarding Early’s conversation

with Doug are not supported by the portions of Early’s deposition that Plaintiff has cited, but

Plaintiff’s account of Early’s conversation with Doug is supported by other portions of Early’s

deposition that Plaintiff did not cite. (Def. LR 56.1 Resp. ¶ 6; see Early Dep. at 28, 80-81.)

10

Defendant disputes this assertion on the basis that it is not supported by the

deposition testimony Plaintiff cites. The court disagrees; Early testified that Doug asked her if she

was seeing the security guard and if she was intimate with him, and then told her that someone

“would come out and talk to [her] about it.” (Early Dep. at 28.) Plaintiff also claims, citing only

Plaintiff’s responses to Defendant’s second interrogatories, that Early never heard anything from

Doug after their initial conversation and that, as far as Early was aware, Defendant took no action

against the security guard. (Pl. LR 56.1 Stmt. ¶ 8.) Defendant objects that Plaintiff’s interrogatory

responses are inadmissible hearsay because, although Early assisted in the preparation of the

interrogatory answers, (Pl. EEOC’s Fifth Supp. Resp. to Def.’s Second Set of Interrogatories to Pl.

at 1, Ex.2 to Pl. LR 56.1 Stmt.), she did not sign them or swear to their truth. Howell himself

admitted that he did not recall doing anything in response to Early’s complaint, however, so the

information for which Plaintiff cites the interrogatory responses is already in the record. (Pl. LR 56.1

Stmt. ¶ 11.)

11

Defendant disputes this assertion on the basis that it is not supported by the cited

evidence. (Def. LR 56.1 Resp. ¶ 11.) The court disagrees; Howell testified that he believes he

made notes of his conversations with Early and that he does not believe that he did anything else

in response to her allegation. (Howell Dep. at 143-44.)

12

court concludes that she must have called on or after July 25, 2001, the last day Early spoke to the guard, given the parties’ agreement that Early was never approached by the guard after she reported his conduct.
On July 25, 2001, Early received a visit from Doug Holman, a department superintendent, who asked her about the previous request she had made to be moved to the third shift. (Id. ¶ 82.) Early told Holman that she wanted to transfer to the third shift due to issues with her children and gave no other reason; her request was granted shortly thereafter. (Id.; Pl. LR 56.1 Stmt. ¶ 13.) After her transfer to the third shift, Early saw the troublesome security guard on one occasion but they did not speak. (Pl. LR 56.1 Stmt. ¶ 14; Early Dep. at 31-32.) In any event, Early testified, she did not feel safe even after her transfer to the third shift, and, based on her experience, she did not believe that Caterpillar took its prohibited harassment policy seriously. (Pl. LR 56.1 Stmt. ¶¶ 15-16.)
In December 2001, Early filed a charge of discrimination with the EEOC, alleging race and disability discrimination. (Def. LR 56.1 Stmt. ¶ 84.) In this charge, Early claimed that she was discriminated against on the basis of her race and an unspecified disability when she was given a below average performance evaluation, her work was scrutinized by management, and her “White Foreman” subjected her to “teasing and harassment on the basis of [her] disability.” (12/20/01 Virginia Early EEOC Charge, Ex. U to Def. LR 56.1 Stmt.) Early did not mention sexual harassment or anything related to her July 2001 conversations with the security guard in that charge. (Def. LR 56.1 Stmt. ¶ 84.)
b. Sexual Harassment Claim
Defendant argues that it is entitled to summary judgment on Plaintiff’s sexual harassment claim on Early’s behalf because there is no evidence that Early was subject to a severe or pervasive hostile work environment or that Defendant was negligent in failing to prevent or remedy any alleged harassment. (Def. Mem. at 9-10.) Plaintiff disagrees and contends that the undisputed evidence raises triable issues as to the existence of a sexually hostile work environment and the
13

appropriateness of Defendant’s response. (Pl. Response at 5-8.) The court agrees with Plaintiff.
To establish this claim, Plaintiff must show that the alleged harassment was subjectively and objectively severe or pervasive. See Whittaker, 424 F.3d at 645. Defendant argues that Plaintiff cannot establish the subjective component of Early’s claim. (Defendant’s Reply in Support of Its Second Motion for Partial Summary Judgment (“Def. Reply”) at 8.) Defendant notes that Early did not mention any sexual harassment in her December 2001 EEOC charge of race and disability discrimination, filed less than five months after the security guard’s comments to her. (Def. LR 56.1 Stmt. ¶ 84.) Because Defendant raises this argument for the first time in its reply brief, the court need not consider it here. See United States v. Adamson, 441 F.3d 513, 521 (7th Cir. 2006) (citing United States v. Blaylock, 413 F.3d 616, 619 (7th Cir. 2005)) (arguments raised for first time in reply brief are waived). In any case, Early testified that she was scared by the security guard’s comments, that she did not feel safe, and that she was bothered enough by the guard’s comments that she alerted two co-workers and the labor relations department. (Def. LR 56.1 Stmt. ¶ 81; Pl. LR 56.1 Stmt. ¶¶ 3-5.) Viewing this evidence in the light most favorable to Plaintiff, the court is satisfied that Early found her work environment to be hostile.
In assessing whether Early’s work environment was objectively hostile, the court considers the totality of the circumstances, including the frequency and severity of the discriminatory conduct; whether it was physically threatening or humiliating, or merely consisted of offensive utterances; and whether it unreasonably interfered with Early’s work performance. See Faragher, 524 U.S. at 787-88 (citing Harris, 510 U.S. at 23). The offensive conduct at issue here was arguably infrequent: Early’s career at Caterpillar began in 1994 and she only claims to have suffered from sexual harassment between July 19, 2001 and July 25, 2001. The severity of the harassment presents a closer issue, however. In evaluating severity, the Seventh Circuit has explained that on one side are sexual assaults, other physical contact for which there is no consent, uninvited sexual solicitations, intimidating words or acts, obscene language or gestures, and pornographic pictures;
14

on the other side lies conduct that generally does not create a hostile work environment, such as “the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.” Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006) (citing Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995)). It is undisputed that the security guard asked Early to have sex with him seven times within a six-day time period, told her on one occasion “what his wife did not do for him,” and told her on another occasion that in his homeland of Romania, he could rape her without any consequences. (Pl. LR 56.1 Stmt. ¶ 2; Def. LR 56.1 Stmt. ¶ 78.)
That the guard repeatedly and directly solicited Early for sex is troubling. In Quantock v. Shared Marketing Services, Inc., the Seventh Circuit viewed an employee’s outright solicitation for numerous sex acts, which were made directly to the plaintiff, as more severe than “occasional vulgar banter tinged with sexual innuendo.” 312 F.3d 899, 904 (7th Cir. 2002). The court held that a reasonable jury could find these sexual propositions sufficiently severe as to have created a hostile work environment. Id. The circumstances here are not identical: the harassing employee in Quantock worked in close quarters with plaintiff and held a significant position of authority over her; but the harassing employee in this case, the security guard, threatened Early in addition to propositioning her for sex. Construing all facts in Plaintiff’s favor, as this court must, the court views the guard’s statement to Early that, in Romania, he could rape her without any repercussions as a threatening and intimidating statement. Viewing this verbal harassment and the guard’s numerous solicitations of Early for sex in the light most favorable to Plaintiff, the court concludes a jury could find the guard’s conduct sufficiently severe so as to have created a hostile work environment.
Because Early did not suffer a tangible employment action, Defendant asserts the Ellerth/Faragher affirmative defense, arguing that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that Early “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm
15

otherwise.” Faragher, 524 U.S. at 807; Phelan, 463 F.3d at 783 (citing Faragher, 524 U.S. at 807). Defendant urges that Plaintiff cannot establish that it acted negligently because Early did not tell her supervisor about the security guard’s conduct and had no compelling reason for failing to report the conduct. (Def. Mem at 9-10.) It is undisputed, however, that Early did reported the security guard’s conduct to Defendant’s labor relations department. Plaintiff argues that Defendant was negligent in failing to investigate that complaint or to take any corrective action, and urges that Defendant cannot escape liability simply because the security guard’s harassment of Early ceased fortuitously. (Pl. Response at 7-9.)
The court first concludes that Defendant knew or should have known about the security guard’s conduct towards Early. See Wyninger, 361 F.3d at 976 (quoting Berry, 260 F.3d at 811) (employer is liable for harassment by a coworker if the employer “‘knew or should have known’ about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice”). As noted, it is undisputed that Early reported the security guard’s conduct to Doug Howell, a labor relations assistant. (Def. LR 56.1 Stmt. ¶ 81; Pl. LR 56.1 Stmt. ¶¶ 4-5, 9-10.) In this complaint, Early specifically told Doug that she did not feel safe, that the guard was soliciting sex from her, and that the guard had told Early that if he was in Romania he could rape her without consequence. (Pl. LR 56.1 Stmt. ¶ 6.) Early’s failure to report the alleged harassment to her supervisor therefore does not defeat her claim; Defendant does not dispute Early’s testimony that at a training session on Defendant’s sexual harassment policy, she was given a list of names and telephone numbers she could call to report harassment, which included employees in the labor relations department. (Id. ¶ 1.) Defendant itself thus conveyed to Early that calling the labor relations department was an appropriate means of reporting sexual harassment.
The only question that remains, then, is whether Defendant took reasonable steps once it was on notice of Early’s complaint. See Wyninger, 361 F.3d at 976 (quoting Berry, 260 F.3d at 811). In making this assessment, the court considers whether Defendant’s response was
16

reasonably calculated to prevent further harassment based on the facts and circumstances at the time Early complained of the guard’s conduct. See Longstreet v. Ill. Dep’t of Corr., 276 F.3d 379, 382 (7th Cir. 2002) (citations omitted); see also Smith v. Sheahan, 189 F.3d 529, 535 (7th Cir. 1999) (court must determine if employer’s response “was a reasonable one, designed to remedy the illegal harassment, or a negligent one that did not adequately respond to the situation in its midst.”) What is a reasonable response depends, in large part, on the gravity of the harassment. Longstreet, 276 F.3d at 382 (citing Baskerville, 50 F.3d 428).
Howell recalls taking notes of Early’s complaint but does not recall doing anything else in response to her complaint. (Pl. LR 56.1 Stmt. ¶ 11.) It is true that on July 25, 2001, the last day the security guard spoke to Early, she talked with her supervisor, Doug Holman, about transferring shifts and she was in fact transferred to a different shift shortly thereafter. (Def. LR 56.1 Stmt. ¶ 82; Pl. LR 56.1 Stmt. ¶ 13.) Defendant does not, however, contend that this transfer had anything to do with Early’s complaint about the security guard’s conduct. Indeed, it is undisputed that Early did not tell Holman about the security guard’s conduct and that Early had previously put in a request to transfer shifts for family-related reasons. (Def. LR 56.1 Stmt. ¶ 82; Pl. LR 56.1 Stmt. ¶ 13.) The parties do not address whether, when Howell received Early’s complaint, he was aware that Early would be transferred to another shift so that her contact with the security guard would be limited. This question bears heavily on whether Defendant responded appropriately to Early’s complaint as, if Howell did not have any knowledge that Early might be transferred, Defendant effectively did nothing in response to Early’s complaint. Under these circumstances, the fact that the harassing conduct did not recur does not require the conclusion that the employer’s response was adequate. Loughman v. Malnati Org. Inc., 395 F.3d 404, 407 (7th Cir. 2005) (citing Smith, 189 F.3d at 535). If “a jury deems [the employer’s] response to have fallen below the level of due care,” an employer may still be liable even if the alleged harassment fortuitously ceased. Smith, 189 F.3d at 535. Defendant’s motion for summary judgment on Early’s sexual harassment claim is denied.
17

2. Diana Gomez
a. Factual Background
Caterpillar hired Diana Gomez as a “supplemental materials handler” in June 2001, and later transferred her to the position of an “assembler”; as an assembler, she worked in Building H. (Def. LR 56.1 Stmt. ¶ 85.) Gomez was assigned to work on the “990/992" assembly line. (Id. ¶ 86.) In this position, Gomez reported to supervisor Austin Bullington, Bullington reported to Roger Meyer, and Meyer reported to Dan Mikelson, the Production Manager; General Foreman Dave Hinton also provided management support for supervisors such as Bullington. (Id. ¶ 87.)
Gomez admits that she received sexual harassment training, (id. ¶ 89), but she does not remember whether she received a copy of Caterpillar’s prohibited harassment policy. (Pl. LR 56.1 Resp. ¶ 89; Pl. LR 56.1 Stmt. ¶ 66; Deposition of Diana Gomez at 45-46, Ex. V to Def. LR 56.1 Stmt.)12 Though she recalls that various policies were displayed on bulletin boards at the Aurora facility, she also does not recall specifically whether the prohibited harassment policy was displayed there. (Pl. LR 56.1 Stmt. ¶ 67.) In any case, Gomez understood that sexual harassment was a violation of Caterpillar’s rules and she was aware of Caterpillar’s prohibited harassment policy. (Def. LR 56.1 Stmt. ¶ 91.)
Gomez claims to have been sexually harassed from December 2003 to February 2004 by Roberto Flores, who has worked at Caterpillar since 1973, and was working as an assembler on the same line as Gomez as of 2003. (Deposition of Roberto Flores at 9-10, Ex. TT in Def. Supp. Exhibits to LR 56.1 Stmt.)13 As a result of Flores’s conduct, described below, Gomez claims that

12

The court sustains Plaintiff’s objection to the assertion that Gomez recalls that the

prohibited harassment policy was posted on bulletin boards that she passed within the facility. (Def.

LR 56.1 Stmt. ¶ 90.) In fact, Gomez testified that she recalls that policies were posted on certain

bulletin boards at the facility, but she did not identify the prohibited harassment policy as one of the

posted policies. (See Gomez Dep. at 31-37.)

13

Plaintiff objects to Defendant’s statement that Flores worked as an assembler on the

(continued...)

18

she was uncomfortable at work and unable to do her job. (Def. LR 56.1 Stmt. ¶ 93; Pl. LR 56.1 Stmt. ¶¶ 68, 78.) Flores himself was aware of Caterpillar’s prohibited harassment policy from the time he started working at Caterpillar, has seen the policy posted in various places at the plant, and has received updated copies of the policy. (Def. LR 56.1 Stmt. ¶ 95.)14 Flores also testified that he attended a meeting for employees about sexual harassment approximately every two years. (Id. ¶ 96.)
“In roughly 2003, Flores was tasked with training Gomez in a particular work area or ‘zone’ on the 990/992 line.” (Id. ¶ 97.) According to Gomez, during the time Flores worked with her, he made “kissing faces” at her approximately four times and touched her buttocks on two occasions. (Def. LR 56.1 Stmt. ¶ 98; Pl. LR 56.1 Stmt. ¶ 72.) The first time that Flores slapped Gomez’s buttocks, she told him to stop and he just laughed. (Pl. LR 56.1 Stmt. ¶ 70.) Flores also told Gomez to “suck [his] dick” two or three times while grabbing himself, and once asked her to “hold it” when he went to the restroom. (Def. LR 56.1 Stmt. ¶ 98; Pl. LR 56.1 Stmt. ¶ 69.)15 When Flores

13(...continued) 990/992 line with Gomez. (Pl. LR 56.1 Resp. ¶ 94.) While the testimony to which Defendant cites is not explicit that Gomez and Flores worked on the same line, the court can reasonably infer that fact; both Gomez and Flores testified that they worked on the 992 line in time periods that would include 2003, which is when Flores is alleged to have sexually harassed Gomez. (Flores Dep. at 9-10; Gomez Dep. at 38-39.)

14

Plaintiff disputes these facts on the basis that Defendant has not provided record

support and did not include Flores’s deposition transcript in its appendix of materials. (Pl. LR 56.1

Resp. ¶ 95.) Defendant inadvertently omitted Flores’s deposition transcript and certain other

materials from its appendix; the court will consider the exhibits, including Flores’s deposition, which

Defendant submitted to the court and Plaintiff on September 15, 2006 upon realizing its omission.

Plaintiff does not otherwise support its disagreement with record evidence; where a fact is

controverted and the dispute is not supported by record evidence, the court deems the fact

admitted. See N.D. ILL. LOCAL RULE 56.1(b)(3)(B) (stating that a response to movant’s statement

of facts shall contain “specific references to affidavits, parts of the record, and other supporting

materials relied upon,” in the case of a disagreement).

15

Defendant asserts that, when Flores said “suck my dick” to Gomez, she did not take

it as a sexual overture. (Def. LR 56.1 Stmt. ¶ 98.) The court concludes this is disputed. Gomez

did testify that she took Flores’s statement as an insult, not as a request, but this does not preclude

Gomez’s understanding of Flores’s statement as a sexual overture. (Gomez Dep. at 99.) In any

(continued...)

19

asked Gomez to “hold it,” she believed he was telling her to go with him to the bathroom and help him hold his penis; Gomez was not sure whether or not Flores was joking when he said this. (Pl. LR 56.1 Stmt. ¶ 71.)
Gomez had complained to her supervisor, Bullington, from time to time about non-sexual issues she had with Flores. (Def. LR 56.1 Stmt. ¶ 99.) And Flores had complained to Bullington about Gomez’s work performance, reporting to Bullington that Gomez asked too many questions to which she should already know the answer; Bullington told Gomez and Flores that they needed to learn to work together. (Id. ¶ 105; Declaration of Austin Bullington ¶ 7, Ex. II to Def. LR 56.1 Stmt.)
Gomez did report some of Flores’s sexual conduct to her union steward, Brian DeHotel; at some point before January 24, 2004, Gomez told DeHotel that Flores had smacked her on the buttocks, that he blew kisses at her, that he made remarks about her sucking his penis, and that he asked her to “hold it.” (Pl. LR 56.1 Stmt. ¶ 79.) Gomez admits she did not report the alleged sexual harassment to Caterpillar management until January 24, 2004. She explained that she was afraid that her coworkers would not support her story and that she might lose her job because she was a temporary worker. (Def. LR 56.1 Stmt. ¶ 99; Pl. LR 56.1 Stmt. ¶ 80.) She acknowledged, however, that she had not heard of anyone losing his or her job for reporting harassment and that she knew that she could have reported Flores’s conduct to someone in Caterpillar’s human resources or labor relations departments. (Def. LR 56.1 Stmt.¶¶ 102, 104.)
In any case, she reported the alleged harassment to Caterpillar management on January 24, 2004 because she “had enough.” (Id. ¶¶ 102-03; Gomez Dep. at 80.) On that day, while Flores and Gomez were eating lunch with others, Flores told Gomez that she was crazy, called her a
15(...continued) event, whether or not Gomez viewed Flores’s comment as a sexual overture, it remains an offensive comment of a sexual nature.
20

“puto,” (a Spanish word for “bitch” or “faggot”), and said she had a penis. (Def. LR 56.1 Stmt. ¶ 106.) Gomez took these comments as angry insults rather than sexual propositions. (Id. ¶ 107.) She claims, further, that at one point during the conversation Flores grabbed himself, pretended to unzip his pants, and told her to “suck my dick,” a comment Flores admits he made. (Id. ¶¶ 10809; Pl. LR 56.1 Stmt. ¶¶ 76-77.) Gomez told Flores she believed he made comments like these because she was a female and that he would not be saying them if she were male. (Pl. LR 56.1 Stmt. ¶ 76.) Gomez responded by mockingly repeated everything that Flores said to her during the conversation.16 Gomez also told Flores that she “know[s] where [he] live[s]” and that she planned to go to his house and tell his wife everything he was saying, (Def. LR 56.1 Stmt; ¶ 111; Pl. LR 56.1 Stmt. ¶ 75), a threat that Flores testified worried him because he believed that Gomez’s husband was a gang member. (Def. LR 56.1 Stmt. ¶ 112; Flores Dep. at 44-45.) Gomez also admits that she called Flores a “mother fucker” during this altercation. (Def. LR 56.1 Stmt. ¶ 111; Flores Dep. at 93.)
Ultimately, Flores told Gomez that she was “really pissing [him] off” and that he was going to report the incident to “the boss,” Bullington. (Def. LR 56.1 Stmt. ¶ 113.) Gomez herself then headed to the office to talk to Bullington, followed by Flores. Gomez claims that as she turned around to put down a can of soda, Flores grabbed her wrist; she admits that Flores did so because he thought she was going to “do something” to him. (Id. ¶¶ 114-15; Gomez Dep. at 70-71.) A coworker separated the two, and Gomez proceeded to Bullington’s office where she complained to Bullington about her altercation with Flores. (Def. LR 56.1 Stmt. ¶ 116.) Gomez also reported other incidents that had occurred between her and Flores; though Gomez does not recall exactly what she told Bullington, she does recall that she told him about the bathroom incident when Flores asked her to “hold it.” (Id. ¶ 117; Pl. LR 56.1 Resp. ¶ 117; Gomez Dep. at 123-24.) Gomez also

16

Defendant notes that Gomez testified that mocking Flores was probably not the “right

way” to handle the conversation, (Def. LR 56.1 Stmt. ¶ 110), but has not explained the relevance

of this testimony, nor suggested what the “right way” to handle such an incident might be.

21

told Bullington that she wanted Flores arrested. (Pl. LR 56.1 Stmt. ¶ 81.)
Bullington reported the January 24, 2004 altercation to the General Foreman, Dave Hinton, and Caterpillar’s Labor Relations representative, Bill Miller. (Def. LR 56.1 Stmt. ¶ 118.) Miller conducted an investigation; first, he removed Flores from Gomez’s work area, and then he interviewed Gomez and Flores. (Id. ¶ 120; Pl. LR 56.1 Resp. ¶ 120.)17 In addition to telling Miller about the January 24, 2004 incident, during one of her multiple meetings with Miller, Gomez also told Miller about “everything else” that Flores had said to her. (Pl. LR 56.1 Stmt. ¶ 82; Gomez Dep. at 116.)18 Flores admitted to Miller that he told Gomez to suck his dick, that he called her a faggot, and that he told her that she has a penis. (Pl. LR 56.1 Stmt. ¶ 83.) Gomez and Flores both admitted that they used profane language during the altercation on January 24, 2004. (Def. LR 56.1 Stmt. ¶ 123.)
Together with Hinton and Doug Howell, Miller also interviewed other employees from Gomez’s work area, including George King and Rocky Olson. (Def. LR 56.1 Stmt. ¶ 120; Pl. LR 56.1 Resp. ¶ 120.) King confirmed that Gomez and Flores had an argument but indicated that he could not understand most of it because they spoke in Spanish; King believed that profanity was involved. He did not see Flores grab himself or pretend to unzip his pants. (Def. LR 56.1 Stmt. ¶ 121.) Although King saw Gomez and Flores shouting and gesturing while standing close to each other, he did not see any physical contact between the two. (Id.) Olson informed Miller that he did not see the incident at all. (Id. ¶ 122.)
During Miller’s investigation of the January 24, 2004 incident, he learned of an incident

17

Plaintiff is correct that the cited evidence does not support that Miller, Hinton, and

Howell interviewed Flores and Gomez; rather, Miller’s declaration only indicates that he interviewed

Flores and Gomez. (Pl. LR 56.1 Resp. ¶ 120; Miller Decl. ¶ 38.)

18

Defendant disputes that Gomez told Miller about other incidents between her and

Flores based on Gomez’s testimony that she cannot remember specifically what she said to whom.

(Def. LR 56.1 Resp. ¶ 82.) Gomez did, however, recall that she told Miller about other issues she

had been having with Flores during one of their multiple meetings. (Gomez Dep. at 116.)

22

between Flores and Gomez that occurred on January 22, 2004. (Id. ¶ 124.) What occurred on that date is disputed. According to Gomez, Flores tried to kiss her and she pushed him away. (Id. ¶ 125; Pl. LR 56.1 Stmt. ¶ 74; Gomez Dep. at 94.) Gomez did not tell Bullington about this attempted kiss when she met with him on January 24, 2004, (Def. LR 56.1 Stmt. ¶ 126), nor did she tell the EEOC investigator who examined her case (the record does not say when) about the attempted kiss. (Id. ¶ 127.) Gomez did raise the incident during Caterpillar’s investigation of the January 24, 2004 altercation and claims that she did not raise it initially because she “just knew” nobody would believe her. (Id. ¶ 128.)19 For his part, Flores denies that he tried to kiss Gomez and claims instead that on January 22, 2004, Gomez struck him without provocation. (Id. ¶ 129; Miller Decl. ¶ 41.) Randy Lavender, another employee, told Miller, Hinton, and Howell that he had witnessed the January 22, 2004 incident. Lavender confirmed Flores’s version, reporting that Gomez had struck Flores without provocation. (Def. LR 56.1 Stmt. ¶ 130.)
Miller and Howell determined that the January 24, 2004 altercation between Flores and Gomez was inappropriate and a violation of Caterpillar’s policies but concluded that it did not constitute sexual harassment. (Id. ¶ 132.) They informed Dan Mikelson, the Production Manager, of their investigation and recommended that both Flores and Gomez receive a 30-day suspension for their conduct in late January 2004. (Id. ¶ 133.) Mikelson was concerned about the allegation that Gomez had struck Flores without provocation, which was corroborated by an independent witness, Randy Lavender. (Id. ¶ 135.) Mikelson issued Flores, a full-time employee, a 30-day unpaid suspension. (Id. ¶ 139.) Mikelson understood, however, that the agreement between the union and Caterpillar “did not provide for suspensions” of supplemental employees like Gomez.

19

Though Defendant states that Plaintiff never reported to anyone that Flores had tried

to kiss her, Plaintiff testified that she reported that to Bill Miller during his investigation of the

January 24, 2004 incident. (Pl. LR 56.1 Resp. ¶ 126; Gomez Dep. at 94.)

23

(Id. ¶ 134.)20 Mikelson decided to terminate Gomez21 based on his reading of the labor contract and his understanding of the January 2004 events. (Id. ¶ 136; Declaration of Daniel Mikelson ¶ 10, Ex. JJ. to Def. LR 56.1 Stmt.)22 According to Mikelson, he was not aware that Gomez had complained about sexual harassment when he decided to terminate her. (Def. LR 56.1 Stmt. ¶ 137; Mikelson Decl. ¶ 11.)23 It remains undisputed, however, that Gomez does not know the reason why she was terminated. (Def. LR 56.1 Stmt. ¶ 138.)

20

The court understands this statement to mean that progressive disciplinary action

was not required before a supplemental employee could be terminated; not that a suspension for

such a worker was not permitted.

21

The parties do not specify when Gomez was terminated nor do they make any

arguments based on the timing of Gomez’s termination.

22

Plaintiff attempts to dispute Mikelson’s reasons for terminating Gomez. According

to Plaintiff, an internal Caterpillar document states that Gomez was discharged because of “false

allegations” about Flores trying to kiss her. (Pl. LR 56.1 Stmt. ¶ 87.) The court will not consider this

document, which is unauthenticated and for which Plaintiff has provided no foundation, on summary

judgment. Though Plaintiff claims—based on Plaintiff’s own non-expert handwriting analysis—that

this document “appears to be in the handwriting of Jack Futterer,” the labor relations manager,

Futterer did not testify about this document and the face of the document does not identify its

author. (CAT009404, Ex. 7 to Pl. LR 56.1 Stmt.) Even if the court were willing to consider the

document on summary judgment, it would not be sufficient to create a dispute of fact as to why

Gomez was terminated. Though the document indicates Gomez was discharged because of “false

allegations” regarding the January 22, 2004 incident, it also said that her story and Flores’ story

were different; that a third employee, Lavender, saw the incident and corroborated Flores’ account;

and that “overall Ms. Gomez had to [sic] many holes in story.” (Id.) Moreover, this document, if

written by Futterer as Plaintiff claims, would not contradict Defendant’s assertion that Mikelson fired

Gomez based on his reading of the labor contract and his understanding of the 2004 events.

(Mikelson Decl. ¶ 10.)

23

Plaintiff also disputes that Mikelson was unaware that Gomez had complained of

sexual harassment when he decided to terminate her. (Pl. LR 56.1 Resp. ¶ 137.) To support this

dispute, Plaintiff cites only the Caterpillar internal document that, according to Plaintiff, shows that

Gomez was discharged because of false allegations regarding Flores trying to kiss her. (Id.; Pl. LR

56.1 Stmt. ¶ 87.) The court has already declined to consider this document on summary judgment,

see supra n.22, and the document is not sufficient to create a dispute of fact as it indicates nothing

about Mikelson’s knowledge at the time he decided to terminate Gomez.

24

b. Sexual Harassment Claim
Diana Gomez alleges that Flores’s conduct, described above, constituted sexual harassment. (Pl. LR 56.1 Stmt. ¶ 68.) Defendant acknowledges that Flores’s conduct was insulting, but argues that it was not based on Gomez’s sex and does not rise to the level of actionable sexual harassment. (Def. Mem. at 12.)
The court concludes there are disputes of fact concerning this claim. Although Defendant urges that Flores’s conduct was not based on Gomez’s sex, the evidence shows that much of Flores’s conduct was of an overtly sexual nature; prior to January 24, 2004, he made kissing faces at Gomez, touched her buttocks, told her to “suck [his] dick” while grabbing himself, and asked her to “hold it” when he went to the restroom. Defendant has not argued that these particular incidents were not based on Gomez’s sex, and the court cannot reasonably make such an inference. (Def. LR 56.1 Stmt. ¶ 98; Pl. LR 56.1 Stmt. ¶¶ 70-72.)
Defendant does argue that Flores’s conduct on January 24, 2004 was not sexual in nature, despite evidence that Flores called Gomez a “bitch” or “faggot, ” told her to “suck [his] dick” while grabbing himself, and pretended to unzip his pants. (Def. LR 56.1 Stmt. ¶¶ 106-09; Pl. LR 56.1 Stmt. ¶¶ 76-77.) Defendant insists that Gomez did not understand Flores’s conduct to be sexual and observes that Gomez herself used inappropriate language towards Flores during their altercation. (Def. Mem. at 12.) This evidence, according to Defendant, establishes only “rude banter” between co-workers, not actionable harassment. Defendant cites Johnson v. Hondo for the proposition that the use of phrases such as “suck my dick” are common in certain circles and often are not sexual harassment but “simply expressions of animosity or juvenile protection.” 125 F.3d 408, 412 (7th Cir. 1997). In the court’s view, Johnson is distinguishable. In Johnson, a male alleged that his male co-worker harassed him by repeated comments that he was going to “make [Johnson] suck [his] dick” and taunts about Johnson’s girlfriend; the co-worker never physically touched or threatened Johnson. Id. at 410-11. Johnson responded to the harassment by calling
25

his co-worker various names, such as “fag” or “S.O.B.” and the two men eventually engaged in a
physical fight. Id. at 411. The Seventh Circuit acknowledged that the case presented a “close call,” but concluded that the co-worker’s use of such expressions was nothing more than an expression of animosity. Id. at 412-13. The court observed that expressions such as “fuck me” and “suck my dick” are common in certain circles, particularly when made by men to other men, and can have no connection to the sexual acts that they reference. Id. at 412. In this case, in contrast, the facts do provide a basis to conclude that Flores’s comments were more than an expression of animosity; Flores had, on multiple occasions in the two months preceding the January 24, 2004 incident, made other comments and gestures to Gomez that were arguably based on her sex, and there is no indication that any of these earlier comments and gestures occurred during the course of an altercation. Based on the current record, the court is not satisfied that Flores’s conduct towards Gomez was not because of her sex.
The court therefore must look to the totality of the circumstances to determine if, as Defendant argues, a reasonable person would not find Flores’s conduct towards Gomez so severe and pervasive to have created a hostile work environment. As noted earlier, the court must consider the frequency and severity of the conduct, whether it was physically threatening or humiliating, and whether it interfered with the employee’s work performance. See Faragher, 524 U.S. at 787-88 (citing Harris, 510 U.S. at 23). In brief, the relevant conduct occurred between December 2003 and January 2004 and consisted of Flores’s making kissing faces at Gomez approximately four times, touching her buttocks twice, telling her to “suck [his] dick” two or three times while grabbing himself, and once asking Gomez to “hold it” when he went to the restroom. (Def. LR 56.1 Stmt. ¶ 98; Pl. LR 56.1 Stmt. ¶¶ 70-72.) Such conduct is in addition to the January 24, 2004 altercation during which Flores called Gomez a Spanish word that can mean “bitch” or “faggot,” said that she had a penis, and told her to “suck [his] dick” while grabbing himself and pretending to unzip his pants. (Def. LR 56.1 Stmt. ¶¶ 106-09; Pl. LR 56.1 Stmt. ¶¶ 76-77.)
26

“In the typical case, it is a combination of severity and frequency that reaches the level of actionable harassment.” Patton, 455 F.3d at 816-17. This case provides such a combination. Some of Flores’s actions towards Gomez—the kissing faces he made at Gomez and asking her to “hold it”—might be characterized as merely offensive utterances and vulgar banter. Id. at 816 (citing Baskerville, 50 F.3d at 430) (“[In evaluating the severity of harassment, on] one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers . . .”) But, on more than one occasion, Flores’s offensive comments were accompanied by the obscene gesture of Flores grabbing himself, which amounts to more than mere banter. See Patton, 455 F.3d at 816 (obscene gestures more severe than occasional vulgar banter). And all of Flores’s offensive comments and gestures, including the words “suck my dick” were made directly to Gomez. Cf. Whittaker, 424 F.3d at 646 (rejecting a hostile work environment claim, in part, because there was no evidence that plaintiff was aware of the explicit, derogatory, and sexist remarks of her supervisors). Flores also engaged in unwanted physical contact with Gomez on at least two occasions when he slapped her on the buttocks. Importantly, the various obscene gestures, offensive comments, and two confirmed incidents of unwanted touching all took place over a relatively short two-month time period. The court is unwilling to characterize this evidence simply as isolated instances of misconduct. See id. at 646
(citing Saxton v. Am. Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir. 1993)). Further, it remains
undisputed that, because of Flores’s conduct, Gomez was not comfortable at work and could not do her job. (Pl. LR 56.1 Stmt. ¶ 78.).24 Based on the totality of the circumstances, a reasonable juror could conclude that the harassment of Gomez was so severe or pervasive so as to create a

24

Though Defendant argues that Gomez’s work environment was not objectively

hostile, Defendant does not address the subjective hostility prong. (Def. Mem. at 12.) The court

therefore assumes this prong to be satisfied for the purpose of this motion.

27

hostile work environment.
Defendant argues it is nevertheless entitled to summary judgment on this claim because as soon as Gomez alleged that she had been harassed after the January 24, 2004 incident, Defendant responded appropriately. (Def. Mem. at 13.) Indeed, Plaintiff has not suggested that Defendant should have been aware of Flores’s conduct towards Gomez or taken any corrective action prior to Gomez’s voicing of her complaints about Flores on January 24, 2004. Defendant points out that immediately after learning of Gomez’s allegations, Bullington reported her claims to his supervisor and to the labor relations department and removed Flores from Gomez’s work area. (Def. LR 56.1 Stmt. ¶¶ 118, 120.) The facts presented by the parties do not, however, address the details of this removal and, without knowing the degree to which this removal limited contact between Flores and Gomez, the court cannot determine whether Flores’s removal was reasonably calculated to prevent further harassment of Gomez based on the facts and circumstances as of January 24, 2004. See Longstreet, 276 F.3d at 38. Defendant also notes that it conducted a prompt and thorough investigation of Gomez’s claims by interviewing Gomez, Flores, and three other employees in Gomez’s work area, (Def. LR 56.1 Stmt. ¶¶ 20, 30), but it is not clear from this record whether the investigation addressed anything other than the January 22, 2004 and January 24, 2004 incidents, despite Gomez’s undisputed testimony that she told Miller about “everything else” that Flores had said to her. (Pl. LR 56.1 Stmt. ¶ 82; Gomez Dep. at 116.) Because it is not clear that Defendant investigated all of her allegations, the court cannot conclude, at this juncture, whether Defendant acted negligently in discovering or remedying any harassment of Gomez. Defendant’s motion for summary judgment is denied as to Gomez’s sexual harassment claim.
c. Retaliation Claim
Plaintiff also claims that Gomez was terminated in retaliation for her sexual harassment complaint. A plaintiff bringing a Title VII retaliation claim can proceed under either the direct or indirect method. See Phelan, 463 F.3d at 787 (citing Stone v. City of Indianapolis Pub. Utils. Div.,
28

281 F.3d 640 (7th Cir. 2002)). Under the direct method, a plaintiff must present direct evidence that she engaged in a protected activity and as a result suffered the adverse employment action of which she complains. Phelan, 463 F.3d at 787 (citing Stone, 281 F.3d at 644). “In the absence of an admission of retaliatory motive by the defendant, a plaintiff can succeed under [the direct method] by presenting sufficient circumstantial evidence such that a jury could infer retaliation.” Phelan, 463 F.3d at 788 (citing Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir. 2005)). If the evidence of retaliation is contradicted, the defendant must establish that it would have taken the adverse employment action even if it had no retaliatory motive. Phelan, 463 F.3d at 787-88 (citing Stone, 281 F.3d at 644). The indirect method requires the plaintiff to show that after engaging in protected activity, she, and not any similarly situated employee who did not engage in such activity, was subject to an adverse employment action. Phelan, 463 F.3d at 788 (citing Stone, 281 F.3d at 644).
On its motion for summary judgment, Defendant claims that Plaintiff has no direct evidence that Gomez was retaliated against and that Plaintiff cannot establish retaliation under the direct or indirect methods. (Def. Mem. at 14-16.) Plaintiff proceeds only under the direct method and contends that circumstantial evidence establishes that Plaintiff was discharged in retaliation for her allegations of sexual harassment. (Pl. Response at 16.) In making this case, Plaintiff points only to an internal Caterpillar document that, in Plaintiff’s view, shows that Gomez was discharged due to false allegations regarding the January 22, 2004 incident during which Gomez claims that Flores tried to kiss her, and creates an issue of fact as to whether Gomez was retaliated against for complaining of harassment. (Pl. Response at 16-17.) For reasons explained earlier, the court is not inclined to consider this unauthenticated document, the author of which is not known.
In any case, Defendant can prevail if it can show that Plaintiff has insufficient evidence to establish its case under the direct method. Celotex Corp., 477 U.S. at 322-23. The court is satisfied that Defendant has done so. Defendant argues that because Mikelson, the decision-
29

maker with respect to Gomez’s termination, had no knowledge that Gomez had complained of sexual harassment, his decision to terminate Plaintiff could not have been retaliatory. (Def. Mem. at 14.) Defendant is correct that, without such knowledge, Mikelson’s decision to fire Gomez could not have been retaliatory. See Luckie v. Ameritech Corp., 389 F.3d 708, 715 (7th Cir. 2004) (decision-maker must have had actual knowledge of the complaints of discrimination in order to retaliate for such complaints); Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000) (“[A]n employer cannot retaliate when it is unaware of any complaints.”). According to Mikelson, he was not aware that Gomez had complained about sexual harassment when he decided to terminate her. (Def. LR 56.1 Stmt. ¶ 137; Mikelson Decl. ¶ 11.) And, while the court finds it somewhat confusing that Mikelson made the decision to fire Gomez based on his understanding of the events that occurred on January 22, 2004 and January 24, 2004 without understanding that at some point Gomez had complained of sexual harassment, (Mikelson Decl. ¶¶ 5-6, 10), Plaintiff has not set forth any credible evidence to dispute Mikelson’s declaration. See supra n.23. In fact, Plaintiff casts this fact—that Mikelson did not know of Gomez’s allegations of sexual harassment—as evidence that Mikelson’s act of disciplining Flores could not have been calculated to correct or prevent harassment. (Pl. Response at 16.) Other undisputed portions of Mikelson’s declaration establish that he fired Gomez based on his understanding of the January 2004 incidents—that both Flores and Gomez had used crude language, during the January 24, 2004 altercation, and that Gomez had struck Flores without provocation on January 22, 2004—and because, as a supplemental employee, Gomez was not protected by the union agreement against immediate termination for such misconduct. (Mikelson Decl. ¶¶ 5-6, 8.) The court grants summary judgment for Defendant on Gomez’s retaliation claim.
30

3. Sandy Irvin
a. Factual Background
Sandy Irvin began working for Caterpillar in April 2000 as an “assembly operator” at its Pontiac, Illinois facility. (Def. LR 56.1 Stmt. ¶ 140.) As a part of her orientation, Irvin learned about Caterpillar’s harassment policy and received a copy of Caterpillar’s booklet entitled What You Should Know About Sexual Harassment in the Workplace. (Id.) Caterpillar promoted Irvin to the position of supervisor on the assembly floor in January 2001 and Irvin then attended a series of classes, one of which covered her responsibilities as a supervisor with respect to Caterpillar’s prohibited harassment policy. (Id. ¶ 141.) Irvin understood that if she received a report of harassment, she was required to report it immediately to human resources staff and to her immediate supervisor. (Id. ¶¶ 141, 143.) In March 2003, Irvin transferred to the Aurora facility and, within approximately six months of her transfer, she attended an orientation that covered Caterpillar’s harassment policy and received a copy of the harassment policy. (Id. ¶ 142.) Irvin is aware that Caterpillar’s harassment policies are posted on bulletin boards in the Aurora facility and on Caterpillar’s website. (Id. ¶ 144.)
In March 2003, Irvin’s position at the Aurora facility was as “second shift supervisor” in Building G; she reported to Mike Brown, the “second shift superintendent.” (Id. ¶ 145.) Mike Brown felt that Irvin was fully competent in her job; Tim Tunt, the operations manager, who reviewed Irvin’s performance when she worked under Brown, also felt that Irvin did a very competent job. (Pl. LR 56.1 Stmt. ¶ 20.) Jon Fay and Paul Oropeza were the lead foremen in Irvin’s areas while she was second-shift supervisor. (Def. LR 56.1 Stmt. ¶ 147.) According to Irvin, she would communicate with the lead foremen daily; before the end of their shift, they were responsible for “getting with [her] and either sending [her] lineups or getting with [her] and giving [her] instructions on what they wanted done on the off shift.” (Id.; Deposition of Sandra Irvin at 37, Ex. Y to Def. LR 56.1 Stmt.) Each day, Fay and Irvin went over the night’s game plan; though Irvin coordinated activities across
31

the shift with Fay, she did not have any reporting relationship with Fay, and Fay was not her supervisor. (Def. LR 56.1 Stmt. ¶¶ 149-51.) Fay had no ability to fire or discipline Irvin,
did not review Irvin’s performance, and did not affect her compensation or assign her work. (Id.)
According to Irvin, in the summer of 2003, Fay began to harass her in person and over the telephone both at work and at home. (Id. ¶ 152; Irvin Dep. at 57, 65.) Irvin claims that Fay would look down her shirt, tell her that he liked the color of her bra, tell her that she “needed a spanking” and that he was the one to do it, ask if she “wanted fries with that shake,” and ask her what kind of underwear she was wearing, including whether she was wearing a thong. (Def. LR 56.1 Stmt. ¶ 153; Pl. LR 56.1 Stmt. ¶ 26.)25 Irvin testified that such comments “were an everyday occurrence,” though Fay might make particular comments only one or two days a week. (Def. LR 56.1 Stmt. ¶ 153; Pl. LR 56.1 Resp. ¶ 153; Pl. LR 56.1 Stmt. ¶ 27; Irvin Dep. at 61-62.) Fay asked Irvin if she “wanted fries with that shake” approximately ten times; Irvin believes this comment was a reference to how she walks, and when she firmly told Fay to stop, he laughed. (Pl. LR 56.1 Stmt. ¶ 28.) When Fay asked Irvin what kind of underwear she was wearing, Irvin told Fay in a serious tone that it was none of his business. (Id. ¶ 29.)
Fay began calling Irvin at home in approximately August 2003 and called her at home a few times a week. (Id. ¶ 30.) Irvin claims that the phone calls Fay made to her home were rarely work related. Sometimes he would call just to talk and ask her what she was doing, sometimes he would tell her he called just to hear her voice, on one occasion he asked her what she was wearing, and at other times he talked about his wife or asked Irvin if she found him attractive. (Def. LR 56.1 Stmt. ¶ 154; Pl. LR 56.1 Stmt. ¶ 30.) During four or five phone calls, Fay told Irvin that he was in love with her and asked if there was any chance for him; Irvin responded that they were just friends and

25

Defendant is correct that Plaintiff’s assertion is not supported by the cited testimony,

but in a portion of Irvin’s deposition not cited by Plaintiff, Irvin did testify that Fay asked her about

wearing a thong. (Irvin Dep. at 64-65.)

32

would never be anything more than that. (Pl. LR 56.1 Stmt. ¶ 30.) Irvin testified that Fay made phone calls to her from late summer 2003 until December or January of 2004, though they stopped for a few weeks in the interim. (Id.; Irvin Dep. at 93-94.) The phone calls during which Fay told Irvin that he was in love with her occurred for only one week. (Def. LR 56.1 Stmt. ¶ 155; Irvin Dep. at 89-90.)
Irvin further testified that, in the summer of 2003, she informed Fay that she had gotten a tattoo and, when she refused to let him see it, he yanked at the waistline of her pants. (Def. LR 56.1 Stmt. ¶¶ 156-57.) Irvin did not report this incident to anyone at Caterpillar. (Id. ¶ 158.) In the fall of 2003, Fay told Irvin that his wife had (falsely) accused him of having an affair with her, and that his wife threatened to come to their workplace and shoot them both. (Id. ¶ 166; Pl. LR 56.1 Stmt. ¶ 31; Irvin Dep. at 76.)
Beginning in late summer or early fall 2003, Irvin told Bob Dively, a maintenance supervisor for Caterpillar, about Fay’s offensive conduct on at least three separate occasions; Irvin testified that she did not expect Dively to act upon the information but she was confiding in him as “a friend.” (Def. LR 56.1 Stmt. ¶¶ 171-72; Pl. LR 56.1 Stmt. ¶ 33.)26 Dively was not Irvin’s supervisor and urged Irvin to report Fay’s conduct. (Def. LR 56.1 Stmt. ¶ 171.) According to Tim Tunt, the operations manager, however, Dively nevertheless had a responsibility to report Irvin’s allegations of Fay’s harassment because he was a supervisor. (Pl. LR 56.1 Stmt. ¶ 24.) In any case, after Irvin first came to Dively and told him about Fay’s conduct, Dively did speak to Mike Brown, Irvin’s supervisor, about Fay and Brown told Dively that he “would take care of it.” (Id. ¶ 38.)27

26

Plaintiff characterizes Irvin’s conversations with Dively as “complaints,” (Pl. LR 56.1

Stmt. ¶ 33), but Irvin testified that she was not “really complaining” to Dively but “was more

confiding in him.” (Irvin Dep. at 94-95.)

27

Defendant objects to a lack of foundation with regard to the conversation between

Dively and Brown; the court is satisfied that Dively has sufficient personal knowledge to testify that

this conversation, of which he was a part, took place. (Def. LR 56.1 Stmt. ¶ 38.) Plaintiff is clearly

not offering Brown’s promise to “take care of it” for its truth.

33

Irvin complained to Mike Brown directly in late summer or early fall 2003. (Def. LR 56.1 Stmt. ¶ 159; Pl. LR 56.1 Stmt. ¶ 41.) According to Irvin, she told Brown “exactly what was going on, that Jon Fay was making repeated phone calls to [her] and that he was telling [her] that he was in love with [her] and asking [her] if there was ever a chance between” the two of them, and that she was offended by these calls. (Def. LR 56.1 Stmt. ¶ 159; Pl. LR 56.1 Stmt. ¶ 41; Irvin Dep. at 71.) Brown told Irvin that he was going to look into the matter and talk to Doug Holman, John Fay’s supervisor; though Irvin believes that Brown took her complaint seriously, she does not know what happened after her conversation with Brown. (Def. LR 56.1 Stmt. ¶¶ 160, 162; Pl. LR 56.1 Stmt. ¶ 41.) Irvin testified that when she reported Fay’s conduct to Brown it was because she “wanted it to stop so [she] could come in and do [her] job harassment free.” (Def. LR 56.1 Stmt. ¶ 161; Irvin Dep. at 129.)28
Shortly after Irvin’s complaint to Brown, Irvin testified, Fay’s behavior changed for about three weeks; he apologized for the things he said and stopped making such comments. (Def. LR 56.1 Stmt. ¶ 163; Pl. LR 56.1 Stmt. ¶ 42; Irvin Dep. at 79-80.) But after three weeks, Fay resumed making inappropriate comments and phone calls to Irvin. (Def. LR 56.1 Stmt. ¶ 164; Pl. LR 56.1 Stmt. ¶ 42.)
A couple of months later, Irvin again complained to Brown. (Def. LR 56.1 Stmt. ¶¶ 165, 168.) Specifically, she reported that Fay had warned her that his wife had threatened to come in and shoot Irvin and Fay. (Pl. LR 56.1 Stmt. ¶ 43.) Brown again promised to talk to Doug Holman. (Id.) After this second complaint to Brown, Fay stopped speaking to Irvin about non-business matters and tried not to talk to her unless it was necessary. (Def. LR 56.1 Stmt. ¶ 169.) But though his conduct was not as offensive as it had been earlier, Irvin testified that even after her second

28

Defendant also asserts that Irvin did not want Brown to fire Fay at the time she

reported Fay’s conduct to Brown. (Def. LR 56.1 Stmt. ¶ 161.) Plaintiff is correct that Defendant

somewhat mischaracterizes Irvin’s testimony; the thrust of Irvin’s testimony is that she could not

have wanted Fay to be fired because she never thought about that one way or another. (Pl. LR

56.1 Stmt. ¶ 161; Irvin Dep. at 128.)

34

complaint to Brown, Fay continued to make comments about the way she looked. (Def. LR 56.1 Stmt. ¶ 170; Pl. LR 56.1 Resp. ¶ 169; Pl. LR 56.1 Stmt. ¶ 44; Irvin Dep. at 83-84.) Irvin does not recall that Brown checked in with her after either her first or second complaint to ensure that everything was okay. (Pl. LR 56.1 Stmt. ¶ 46.)
On one occasion in January 2004, Irvin was not feeling well and put her head down on her desk. Fay came up behind her and began rubbing her shoulders; Irvin told Fay to stop, warning him that somebody might see him, but Fay continued, rubbing her back harder. (Def. LR 56.1 Stmt. ¶¶ 174-75; Pl. LR 56.1 Stmt. ¶ 32.) Irvin again told Fay to stop, and, when he did not stop, she pushed her rolling chair back as hard as she could to get away from him. (Def. LR 56.1 Stmt. ¶¶ 175-76; Pl. LR 56.1 Stmt. ¶ 32.) According to Irvin, Fay then walked over to his desk, looked down, and said “now look what you did to me.” (Def. LR 56.1 Stmt. ¶ 177; Pl. LR 56.1 Stmt. ¶ 32.) Irvin could see out of the corner of her eye that Fay had an erection; Fay then said to Irvin, “we can go out and finish this, nobody will know.” (Def. LR 56.1 Stmt. ¶ 178; Pl. LR 56.1 Stmt. ¶ 32.) Irvin told him “no” and Fay repeated that they could go “take care of this now,” at which point Irvin said “no,” left the office, and then left the Caterpillar facility without speaking to anyone. (Def. LR 56.1 Stmt. ¶¶ 178-79.)
Irvin told Dively about the January 2004 incident, and Dively again spoke to Brown, who said “he would take care of it.” (Pl. LR 56.1 Stmt. ¶ 39.) Also on the day of the January 2004 incident, or the following day, Irvin confided in Tim Anderson, “as a friend,” about the comments Fay had made to her, Fay’s phone calls to her, and the January 2004 incident. (Def. LR 56.1 Stmt. ¶ 173; Irvin Dep. at 100.) Anderson also reported Fay’s conduct to Brown. (Def. LR 56.1 Stmt. ¶¶ 180-81; Pl. LR 56.1 Stmt. ¶ 37; Irvin Dep. at 100-01.)29

29

Plaintiff asserts that Anderson was a supervisor at the time Irvin informed Anderson

about the January 2004 incident. (Pl. LR 56.1 Stmt. ¶ 36.) The court agrees with Defendant that

Anderson’s testimony does not support this conclusion. (Def. LR 56.1 Resp. ¶ 36.) Anderson

testified that he was rehired to work as a robotics programmer support person at the Aurora facility

(continued...)

35

On the day following the January 2004 incident, Brown pulled Irvin into his office, told her that Anderson had reported the incident to her, and asked her what had happened. (Def. LR 56.1 Stmt. ¶¶ 180-81; Pl. LR 56.1 Stmt. ¶ 47.) After Irvin explained what had occurred, Brown discussed her allegation with Doug Holman, and Holman and Brown decided to take the issue to their supervisor Tim Tunt, the operations manager. (Def. LR 56.1 Stmt. ¶ 182; Pl. LR 56.1 Stmt. ¶ 48.)30 Tunt testified that this was the first occasion on which Brown had told him of Irvin’s allegations against Fay, and that Brown did not report previous complaints from Irvin. (Pl. LR 56.1 Stmt. ¶¶ 4950.) Tunt was familiar with Caterpillar’s sexual harassment policy and his obligation to investigate incidents related to the policy. (Def. LR 56.1 Stmt. ¶ 182.) Tunt met with Irvin and Holman that same day, heard her account of what had occurred, and asked her to write a statement about the incident. (Id. ¶ 183; Pl. LR 56.1 Stmt. ¶ 51.) A few days later, Irvin did write a statement detailing her allegations against Fay, and later reviewed it with Tunt. (Def. LR 56.1 Stmt. ¶ 183; Pl. LR 56.1 Stmt. ¶ 51; Tunt Dep. at 27.)31
Irvin testified that, during her meeting with Holman and Tunt, Holman accused Irvin of

29(...continued) in February 2003 as a “retiree,” which was a position similar to a supplemental or temporary employee. (Deposition of Tim Anderson at 10-13, Ex. 4 to Pl. LR 56.1 Stmt.)

30

Plaintiff asserts that Brown had never reported Irvin’s complaints of harassment to

anyone else prior to his discussion with Holman in January 2004. (Pl. LR 56.1 Stmt. ¶ 49.)

Defendant contends that the cited deposition testimony does not support such an assertion and the

court agrees. (Def. LR 56.1 Resp. ¶ 49; Deposition of Michael J. Brown at 12, Ex. Z to Def. LR 56.1

Stmt.)

31

In Plaintiff’s statement of facts, Plaintiff states, in detail, the content of Irvin’s

statement. (See Pl. LR 56.1 Stmt. ¶¶ 52-56.) Defendant objects to these assertions of fact on the

ground that they are based only on an “unauthenticated, unverified, hearsay document.” (Def. LR

56.1 Stmt. ¶ 52.) In her deposition, Irvin identified a statement she had written after her meeting

with Tunt and Holman, but Defendant is correct that there is no indication that the statement Plaintiff

relies on in its statement of facts is the same document Irvin identified during her deposition. (See

Ex. 5 to Pl. LR 56.1 Stmt.) Though the court will not consider this unauthenticated handwritten

document, the court acknowledges that the parties do not dispute that a few days after the January

2004 incident, Irvin wrote a statement, at Tunt’s request, detailing her allegations about Fay’s

conduct towards her. (Pl. LR 56.1 Stmt. ¶ 51; Def. LR 56.1 Stmt. ¶ 183.)

36

“leading Fay on,” and asked Irvin if she had asked Fay out for drinks, to which Irvin responded that she had not. (Pl. LR 56.1 Stmt. ¶ 57.) In response to this exchange, Tunt clarified that no matter what, Fay did not have the right to conduct himself as he had. (Id. ¶ 59.) Tunt nevertheless observed that Irvin was a good-looking woman, that “things like this were going to happen,” and that Irvin needed to “have thick skin in the shop.” (Id. ¶ 58.)
Prior to Irvin’s report of the January 2004 incident, Tunt was not aware of any allegations of inappropriate conduct on Fay’s part. (Def. LR 56.1 Stmt. ¶ 184.) After learning about the incident, Tunt interviewed both Irvin and Fay. Tunt recalls that when he confronted Fay with “the issue in general and with some of the specifics that Irvin had alleged,” Fay responded by presenting a number of things that Irvin herself did, including his belief that Irvin “was setting him up,” “that she showed him her tattoos on various places on her body,” and that “she talked about being horny all of the time and giving her old man just enough to keep him happy.” (Id. ¶¶ 185-86.) Tunt testified that he listened and documented his conversation with Fay. (Id. ¶ 186.) Tunt then talked to various other employees, including Dively, but did not find any firsthand witnesses to the January 2004 incident; Tunt concluded he was left with a “he said, she said” situation and had no reason to believe Irvin any more than Fay. (Id. ¶¶ 187-88; Pl. LR 56.1 Stmt. ¶ 60.) Dively did, however, tell Tunt that Irvin had also talked to him and reiterated some of the allegations in her statement. (Pl. LR 56.1 Stmt. ¶ 60.)32 Ultimately, Tunt gave Fay a verbal reprimand, instructed him that there would be no tolerance for a violation of the prohibited harassment policy, warned him that Irvin’s allegations were very serious, sent him home for a couple of days to impress on him the importance of abiding by the policy, and instructed Fay that any further interaction with Irvin had to be limited

32

Defendant objects to Plaintiff’s statement of fact to the extent it is based on Tunt’s

testimony regarding what Dively said to Tunt, which Defendant characterizes as inadmissible

hearsay. (Def. LR 56.1 Resp. ¶ 60.) As the court understands this evidence, Plaintiff is not

presenting Dively’s statement to Tunt for its truth, but rather to suggest that Dively’s confirmation

that Irvin had made a similar complaint to him bolstered Irvin’s credibility; the court finds Tunt’s

testimony on his conversation with Dively admissible for that limited purpose. (Pl. LR 56.1 Stmt.

¶ 60.)

37

to what was necessary for them to do their jobs. (Def. LR 56.1 Stmt. ¶¶ 188-89; Pl. LR 56.1 Stmt. ¶ 61; Tunt Dep. at 30-33.) Tunt also referred Fay to Caterpillar’s Employee Assistance Program because, in Tunt’s estimation, Fay appeared emotionally unstable. (Pl. LR 56.1 Stmt. ¶ 61.) The parties agree that Fay was not suspended and suffered no loss of pay. (Id. ¶ 62; Tunt Dep. at 32.) After meeting with Fay for the second time, Tunt forwarded the documentation from his investigation to Bill Miller in the labor relations department; Miller and Tunt reviewed Irvin’s statement and Tunt’s summary and agreed that Caterpillar had taken the appropriate action. (Def. LR 56.1 Stmt. ¶ 190.)
In January 2004, Irvin was promoted to lead foreman on the day shift in Building K. (Id. ¶ 193.) It is undisputed that at the time of the January 2004 incident, the plans to move Irvin to Building K were already in process. (Id.; Irvin Dep. at 129.) In this position, Irvin reported to Mark Koenig and Bill Chapman. (Def. LR 56.1 Stmt. ¶ 193.) After Irvin had been transferred to Building K, she heard rumors that Fay was telling people that Irvin had “set him up.” (Id. ¶ 196) Irvin reported these rumors to Tunt, who told her that he would talk to Fay about it, and urged her to report to him if the rumors did not stop. (Id. ¶¶ 196-97.) After she complained to Tunt, Irvin did not hear the rumor again. (Id. ¶ 197.)
In March 2004, Irvin took a “developmental” assignment in the planning department as a “manufacturing project specialist,” which required her to once again work in Building G. (Id. ¶ 194.) In that position, Irvin reported to Greg Sabo and then to Craig Decker. (Id.) According to Irvin, when she moved back to Building G, Fay also worked in Building G, on the same shift, although Irvin’s job did not require her to interact with Fay. (Id. ¶ 199; Irvin Dep. at 118.) Irvin claims that she and Fay nevertheless would “run into each other” and Fay would smirk at her or glare at her when he saw her; Irvin did not report this behavior to anyone. (Def. LR 56.1 Stmt. ¶ 199.) In July 2005, Irvin’s desk in the planning department was “ransacked”; papers were “strewn all over” and some paperwork was stolen from Irvin’s desk. (Irvin Dep. at 121.) Irvin admits that she did not see Fay “ransack” her desk, nor did anyone tell Irvin that he had done so; Irvin nevertheless assumed that
38

Fay was involved because she has never had problems with anyone else. (Def. LR 56.1 Stmt. ¶ 201; Irvin Dep. at 125-26.) By 2005, Tunt was Irvin’s mentor; when Irvin mentioned to Tunt the previous situation between her and Fay in 2005, Tunt commented on the difficulties it created for him with the words, “I could have shot you both.” (Pl. LR 56.1 Stmt. ¶ 63.)
b. Sexual Harassment Claim
Plaintiff brings a sexual harassment claim on Sandy Irvin’s behalf as a result of John Fay’s conduct. In moving for summary judgment, Defendant does not contend that Fay’s conduct was not objectively and subjectively so severe or pervasive that it created a hostile work environment for Irvin. Rather, Defendant argues only that it is not liable for Fay’s conduct because it was not negligent in discovering or correcting the alleged harassment. (Def. Mem. at 17.) Plaintiff disagrees and contends that Defendant failed to respond in a timely or appropriate manner to Irvin’s complaints. (Pl. Response at 8-9.)
As stated above, an employer is liable for harassment by a coworker if the employer “‘knew or should have known’ about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice.” Wyninger, 361 F.3d at 976 (quoting Berry, 260 F.3d at 811). There is ample evidence that Defendant knew or should have known about Fay’s conduct towards Irvin: Irvin testified that she made multiple complaints about Fay’s harassment to Bob Dively, Tim Anderson, and Mike Brown beginning in the summer 2003 and continuing through December 2003. (Pl. Response at 10.) Defendant disputes that Irvin’s complaints to Dively and Anderson were sufficient to put Defendant on notice of Fay’s conduct; Defendant notes that Irvin confided in Dively and Anderson as “friends” and did not expect them to take corrective action. (Def. Mem. at 15-16.) Plaintiff observes, however, that because Dively and Anderson were supervisors,33 they were required to bring any complaints of harassment to the attention of their supervisors and the labor

33

The court previously concluded that a dispute exists as to whether Dively was a

supervisor. See supra Discussion Section A.3.a.

39

relations department. (Pl. Response at 10.) It is undisputed that Defendant’s supervisors and managers do have a responsibility to report allegations of harassment per Caterpillar policy, see supra n.3, and the court is uncertain whether Irvin’s perception that she was confiding in Anderson and Dively as “friends” excuses that obligation. In any event, it is undisputed that, after Irvin first confided in Dively in late summer or early fall 2003, he did inform Mike Brown, Irvin’s supervisor, about Fay’s conduct and again informed Brown about Fay’s conduct after the January 2004 incident. (Pl. LR 56.1 Stmt. ¶¶ 38-39.) Anderson likewise told Brown about the January 2004 incident. (Def. LR 56.1 Stmt. ¶ 181.) Further, Irvin testified that she complained to Brown himself about Fay’s treatment of her in late summer or early fall 2003 and again a couple of months later, after Fay repeated his alleged threat to shoot both Irvin and Fay. (Def. LR 56.1 Stmt. ¶¶ 159, 165, 168; Pl. LR 56.1 Stmt. ¶¶ 41, 43.) Brown thus certainly knew or had reason to know of the alleged harassment by the early fall of 2003.
Defendant nevertheless urges that it is entitled to summary judgment on the claim because it acted reasonably. According to Defendant, after Irvin’s first complaint in fall 2003, Fay apologized to Irvin and his offensive conduct stopped and, when it began again, Irvin did not immediately report it. (Def. Mem. at 18.) In January 2004, Defendant argues, it took prompt action by conducting an investigation and then reprimanding Fay, at which point all harassment of Irvin came to an end. (Id. at 19.) Plaintiff, on the other hand, notes that Brown neglected to follow Defendant’s policy by failing to take Irvin’s complaints to anyone higher in Defendant’s management or labor relations department until January 2004, and, as a result, is liable for Fay’s continued harassment in 2003. (Pl. Response at 10.) Finally, Plaintiff contends that the action Defendant did take in 2004—sending Fay home from work with pay to impress upon him the importance of the harassment policy—was insufficient to prevent further harassment and that Fay’s misconduct ceased only because Irvin fortuitously received a promotion and reassignment to another building. (Id. at 12-13.)
40

Defendant has not satisfied the court that there are no disputes of fact concerning the adequacy of its response to Irvin’s complaints. Celotex Corp., 477 U.S. at 322-23 (on summary judgment, it is the moving party’s initial burden to show that the evidence is insufficient to establish a material element of the non-moving party’s case); Longstreet, 276 F.3d at 382 (employer’s response to harassment by co-worker must be reasonably calculated to prevent further harassment based on the facts and circumstances at the time). After Dively first told Brown about Fay’s conduct, Brown told Dively that “he would take care of it,” (Pl. LR 56.1 Stmt. ¶ 38), and when Irvin first complained to Brown, Brown told her that he was going to look into the matter and talk to Fay’s supervisor. (Def. LR 56.1 Stmt. ¶¶ 160, 162; Pl. LR 56.1 Stmt. ¶ 41.) There is no evidence, however, of what action, if any, Brown actually took in response. It is true that Fay apologized to Irvin after her initial complaint and that his behavior changed for about three weeks, but it is also undisputed that Fay then resumed making inappropriate comments and phone calls to Irvin. (Def. LR 56.1 Stmt. ¶¶ 163-64; Pl. LR 56.1 Stmt. ¶ 42; Irvin Dep. at 79-80.) That Fay’s conduct ceased for a period of time is not determinative of the court’s outcome; after all, an employer can “be liable if harassment fortuitously stops, but a jury deems its response to have fallen below the level of due care.” Smith, 189 F.3d at 535.
The court also cannot determine if Defendant acted negligently after Irvin complained to Brown a second time when Fay informed her that his wife had threatened to come in and shoot Irvin and Fay.34 At that point, Brown again told Irvin he would talk to Doug Holman. (Pl. LR 56.1 Stmt.

34

In Defendant’s brief, Defendant assumes that Irvin made two complaints to Brown:

one in late summer or early fall 2003 and a second related to the January 2004 incident. (Def.

Mem. at 18.) Defendant further asserts that when Fay engaged in additional conduct, after Irvin’s

complaint, she failed to report it. (Id. at 19.) This does not comport with the court’s view of the

facts. Irvin testified that she complained to Brown first in late summer 2003 or early fall 2003 and

again a few months later when Fay informed her that his wife had threatened to come in and shoot

Fay, (Pl. LR 56.1 Stmt. ¶¶ 41, 43), and Defendant has not set forth any evidence to contradict

Irvin’s testimony. (Def. LR 56.1 Resp. ¶¶ 41, 43.) It is true that, in January 2004, Brown asked Irvin

about Fay’s conduct, but Brown explained that he learned of Fay’s conduct in January 2004 from

Anderson, not Irvin. (Pl. LR 56.1 Stmt. ¶ 47.)

41

¶ 43.) And it is undisputed that after that complaint Fay tried to speak to Irvin only when necessary. (Def. LR 56.1 Stmt. ¶ 169.) Still, because Defendant has presented no evidence of what action Brown actually took, the court cannot evaluate whether Defendant’s response was reasonably calculated to prevent further harassment.
The record does include evidence of Defendant’s response in the aftermath of the January 2004 incident: Defendant initiated an investigation of the January 2004 incident, administered a verbal reprimand of Fay, ordered counseling for Fay on the harassment policy, instructed him to interact with Irvin only when necessary for business, and imposed a two-day paid leave of absence. (Def. LR 56.1 Stmt. ¶¶ 188-89; Pl. LR 56.1 Stmt. ¶ 61; Tunt Dep. at 30-33.) Although these steps appear to be appropriate ones, the court is unable to determine, as a matter of law, whether Defendant was negligent in failing to discover or adequately remedy the harassment of Irvin. See Brooms v. Regal Tube Co., 881 F.2d 412, 421 (7th Cir. 1989), overruled on other grounds by Saxton, 10 F.3d at 533 n.12 (court must determine whether “employer’s total response was reasonable under the circumstances as then existed”). The court therefore denies Defendant’s motion for summary judgment with respect to Irvin’s sexual harassment claim.
4. Lillie Johnson a. Factual Background
Lillie Johnson began working for Caterpillar at its Aurora facility in 1974. (Def. LR 56.1 Stmt. ¶ 202.) Since 1974, Johnson has held several different positions at the Aurora facility. (Id.) At all times during Johnson’s employment, she was a member of the UAW and was protected by the collective bargaining agreement between the UAW and Caterpillar; she has filed (unspecified) grievances pursuant to that agreement. (Id. ¶ 203.)
Johnson had at least some training on Caterpillar’s prohibited harassment policy. According to Defendant, beginning as early as December 1996, Johnson attended a number of training
42

sessions that covered the prohibited harassment policy, and received Caterpillar’s booklet, What You Should Know About Sexual Harassment in the Workplace, at those training sessions. (Def. LR 56.1 Stmt. ¶¶ 258-60.)35 Plaintiff does not dispute that, in December 2003, Johnson attended a training on the prohibited harassment policy, (Pl. LR 56.1 Resp. ¶ 261), but Johnson testified that she does not recall receiving any documents relating to the prohibited harassment policy and was not aware of any of Caterpillar’s policies with regard to investigating complaints of sexual harassment. (Def. LR 56.1 Stmt. ¶ 262.)36
According to Johnson, Dave Ridenour, her supervisor from 1988 to 1990, harassed her in Building B at some point when he was her supervisor. (Id. ¶ 229; 12/1/05 Deposition of Lillie Johnson at 47-48, Tab BB to Def. LR 56.1 Stmt.) Johnson alleges that, after she complained to
Ridenour that she was offended by the another employee’s use of the term “nigger-rigging,” Ridenour began following her to the bathroom, and limiting her breaks and personal time. (Def. LR 56.1 Stmt. ¶ 229; 12/1/05 Johnson Dep. at 46-47.) Johnson testified that after she filed a complaint with the EEOC about this conduct sometime between 1988 and 1990, the harassment stopped. (Def. LR 56.1 Stmt. ¶ 230.)
Johnson also testified that Dean Potter, who was her superintendent for several years, asked her “personal questions” at some point during the 1990's; specifically, Johnson testified that

35

Defendant cites to the declaration of Bill Miller to establish that Johnson attended

particular training sessions on Caterpillar’s prohibited harassment policy and that she was provided

documents on the policy. (Def. LR 56.1 Stmt. ¶¶ 258-60.) Plaintiff objects that Miller’s statements

are not supported by adequate foundation. (Pl. LR 56.1 Resp. ¶¶ 258-60.) Miller’s declaration sets

forth his responsibilities as the labor relations representative, which includes implementing training

programs on Caterpillar’s harassment policies, and that he has access to employee personnel files.

(Miller Decl. ¶¶ 2-5.) The court is satisfied that Miller has sufficient knowledge to attest to what

training sessions Plaintiff attended and what occurred at those training sessions.

36

Johnson also testified that she did not see Caterpillar’s prohibited harassment policy

posted until after this lawsuit, but this testimony deserves little weight; Johnson did not recall exactly

when the lawsuit was filed, and acknowledged that she never checked the display cases and

bulletin boards where the prohibited harassment policy is posted. (Def. LR 56.1 Stmt. ¶ 263.)

43

Potter harassed her by asking her on one occasion whether she was still married and whether she had a boyfriend or children. (Id. ¶ 231.) Johnson admits that Potter never asked her out, asked her for sex, commented on her appearance, or threatened her in any way. (Id. ¶ 232.)
Johnson also felt harassed by a co-worker, Art Whipple, after she had crossed the picket line and continued to work during a UAW strike in 1996. (12/1/05 Johnson Dep. at 35-36.) According to Johnson, Whipple called her a “bitch” on one occasion and repeatedly wore a t-shirt that read “roses are red, violets are blue, I pay my union dues, why don’t ewe.” (Def. LR 56.1 Stmt. ¶ 233.) Johnson claims that Whipple also harassed her in February 1999 by “stalking” and “staring” at her, and by whistling at her on three different days. (Id. ¶ 234.)37 After Johnson executed a statement detailing Whipple’s treatment of her and gave it “to security,” various supervisors met with her and Whipple, (12/1/05 Johnson Dep. at 37-38), and Bill Miller conducted an investigation, which included interviews with Johnson and Whipple among others. (Def. LR 56.1 Stmt. ¶ 236.) Whipple admitted to Miller that he often whistled, but he denied ever whistling at Johnson or stalking or staring at Johnson. (Id. ¶ 237.) During the interview, Miller cited Caterpillar’s prohibited harassment policy and warned Whipple that harassment is cause for discipline up to and including termination. (Id.) Miller subsequently explained to Johnson that he had instructed Whipple to control his whistling, that Whipple had a business reason for being in her work area and that he (Miller) could not confirm that Whipple was “stalking” her or “staring” at her. (Id.) Miller also encouraged Johnson to immediately report any further incidents and explained that certain supervisors would monitor her situation with Whipple. (Id. ¶ 239.) Johnson told Miller that she was satisfied with his investigation. (Id. ¶ 240.) She never again complained to him about Whipple’s conduct. (Id. ¶ 241.)

37

Oddly, Plaintiff contends that Defendant has not provided support for its statement

that Johnson alleged that Whipple harassed her in 1999. (Pl. LR 56.1 Resp. ¶ 234.) While

Defendant initially neglected to attach its supporting exhibit to its statement of facts, Defendant

subsequently submitted an affidavit executed by Johnson in 1999 detailing Johnson’s allegations

of Whipple’s harassment. (February,1999 Johnson Affidavit, Ex. 44 to 12/1/05 Johnson Dep.)

44

Johnson testified that she learned in 1998 from another Caterpillar employee, Sam Rory, who retired in 1995, that other Caterpillar employees—specifically, Diane Brown, Syl Taylor, and Reatta Williams—were promoted because they slept with management employees. (Def. LR 56.1 Stmt. ¶¶ 252-54.) Johnson admits that she does not know what promotions any of these women received or the identities of the managers they allegedly slept with. (Id. ¶¶ 255-57.)
Johnson also claims that she was harassed in 1998 or 1999 by Bob Smith, who was also her supervisor at the time. (Id. ¶ 242; Pl. LR 56.1 Stmt. ¶ 121.) According to Johnson, when she asked Smith what steps she needed to take to get promoted, Smith asked her whether she “wanted to sleep [her] way up,” a comment Johnson interpreted as a suggestion that she should sleep with Smith. Smith further asked her how badly she wanted it and told her she could “get in the office” (presumably, a reference to obtaining a promotion) in six months if she slept her way up. (Def. LR 56.1 Stmt. ¶ 242; Pl. LR 56.1 Stmt. ¶¶ 118, 120; 12/1/05 Johnson Dep. at 53.) When Smith told her she was not interested in getting into the office that way, Smith asked her, “[w]hat’s the matter, am I not black enough?” (Pl. LR 56.1 Stmt. ¶ 118.) Johnson admits that she did not file a grievance over this comment, nor did she report it to any manager, supervisor, the EEOC, or Caterpillar’s human resources department. (Def. LR 56.1 Stmt. ¶ 243.)38 Johnson also alleges that Smith hit her “on [her] behind” on one occasion in 1998 and tried to rub his arm against her breasts on two occasions in 1999; after Johnson told Smith that she “would cut his arm off” if he did it again, his conduct stopped. (Id. ¶ 245; 12/1/05 Johnson Dep. at 55-56.) According to Johnson, she had seen Smith rub his arm against the breasts of another employee, Esther Wilson, in 1998 or 1999.

38

Plaintiff disputes this fact and contends that Johnson did report Smith’s comment

to the EEOC. (Pl. LR 56.1 Resp. ¶ 243.) Plaintiff cites to the EEOC’s Response to Defendant’s

Second Set of Interrogatories, which noted Johnson’s allegation that Smith told her she could

“sleep [her] way up” at Caterpillar. (EEOC’s Response to Defendant’s Second Set of

Interrogatories at 4, Ex. T to Def. LR 56.1 Stmt.) But, Johnson admitted in her testimony that she

did not report Smith’s comment to anyone at the EEOC, (12/1/05 Johnson Dep. at 55), and there

is nothing in the EEOC’s interrogatory responses indicating that the EEOC would have learned of

Smith’s comment but for this lawsuit.

45

(Pl. LR 56.1 Stmt. ¶ 119.) Finally, Johnson claims that around the year 2000, Smith warned Johnson that he would “hit [her] across [her] fat ass if [she broke] another one of those wheels.” (Def. LR 56.1 Stmt. ¶ 246; 12/1/05 Johnson Dep. at 72-73.) Johnson never reported this comment to anyone in Caterpillar’s labor relations or human resources departments, (Def. LR 56.1 Stmt. ¶ 247), but she asserts that another employee, Bill Brown, witnessed Smith threaten to hit Johnson’s buttocks. (Pl. LR 56.1 Stmt. ¶ 122.) Johnson testified that Brown, whom she believes to be part of Caterpillar’s management, asked her not to make a complaint about Smith because he believed Smith “didn’t mean it.” (Id.; 12/1/05 Johnson Dep. at 72-75.)
Johnson also observed offensive pictures of naked women posted throughout Building B starting in 1988 and until November 2001. (Def. LR 56.1 Stmt. ¶ 248; Pl. LR 56.1 Resp. ¶ 248; Pl. LR 56.1 Stmt. ¶ 123.)39 These pictures, which Johnson observed at various work stations depicted, for example, women with bare breasts, naked women sitting with their legs spread open, women sitting on motorcycles and other pictures from Playboy magazine. (Pl. LR 56. 1 Stmt. ¶ 123.) Johnson found the pictures and the comments that men made about them distracting; for example, in 2000, she heard a co-worker comment that he wondered how many other woman “in here” look like these women. (Id. ¶ 124.) She admits, however, that she never complained to managers or Caterpillar’s labor relations or human resources departments about these pictures. (Def. LR 56.1 Stmt. ¶ 250; Pl. LR 56.1 Stmt. ¶ 123.) Johnson also felt harassed in 1999 or 2000 when someone left a rubber penis at her work station. (Def. LR 56.1 Stmt. ¶ 251.) She complained to her

39

Based on Johnson’s testimony that she did not experience sexual harassment from

October 2000 to November 2001, Defendant contests Plaintiff’s assertion that Johnson saw such

pictures after October 2000. (Def. LR 56.1 Resp. ¶ 123; 12/1/05 Johnson Dep. at 93.) While

Defendant accurately stated Johnson’s testimony, Johnson also testified that she believed

employees acted inappropriately towards her based on her sex because there were magazines with

pictures of naked women throughout the plant during that same time period. (12/1/05 Johnson

Dep. at 86.) She also stated specifically in her declaration that she was exposed to such pictures

until November 2001. (Declaration of Lillie Johnson ¶ 6, Ex. 11 to Pl. LR 56.1 Stmt.) The court

views these facts in the light most favorable to Plaintiff and concludes that Johnson was exposed

to pictures of naked women from 1988 to November 2001.

46

supervisor at the time, Jim Foster, about the rubber penis; she is not aware whether Foster took any action in response and did not explain what happened to this item. (Pl. LR 56.1 Stmt. ¶ 125.)
From October 2000 to November 2001, Johnson reported to George Tolliver in Building B, with the exception of two months in 2001 when she reported to U.B. Jenkins in Building K. (Def. LR 56.1 Stmt. ¶ 204.) During the time Johnson worked in Building B, she worked on the first, second, and third shifts, and had no reason to go into any other buildings. (Id. ¶¶ 206-07.) Beginning in December 2001, Johnson again worked in Building K. (Id. ¶ 204.)
According to Johnson, Bob Garcia harassed her during the time she worked in Building B and reported to George Tolliver. (Id. ¶ 214.) Specifically, Johnson claims that Garcia winked at her when she made eye contact with him on several occasions. (Id.) On one occasion, Johnson asked Garcia what was in his eye and he replied, “you.” (Id.) Garcia said nothing else during that conversation and, during the numerous times he walked through Johnson’s work area over a period of approximately six months, he never stopped to talk to her. (Id. ¶¶ 214-16.) After that six-month period, Johnson never again saw Garcia in her work area. (Id. ¶ 216.) Garcia never supervised Johnson, nor did he control Johnson’s work assignments. (Id. ¶ 217.) Johnson did not report Garcia’s conduct to her supervisor or anyone in Caterpillar’s labor relations or human resources departments. (Id. ¶ 218.)
Johnson also claims that she was harassed by U.B Jenkins when she worked in Building K in 2002. According to Johnson, after receiving her degree from Aurora University in 2002 she asked Jenkins, a long-time management employee, if there was anything he could do in order to help her get a job in the office. (12/1/05 Johnson Dep. at 97.) Jenkins told her “the degree won’t do any good without a couple of lap dances.” (Def. LR 56.1 Stmt. ¶ 220; Pl. LR 56.1 Stmt. ¶ 126.) Johnson never reported this comment to her supervisor or anyone in Caterpillar’s labor relations or human resources departments, assertedly because she feared retaliation. ( (Def. LR 56.1 Stmt.
47

¶ 222.)40 The parties dispute whether Jenkins made any further harassing comments to Johnson. Defendant is correct that Johnson testified that Jenkins did not say anything else that she thought was harassing. (Id. ¶ 223; 12/1/05 Johnson Dep. at 99.) But Johnson also testified that Jenkins made further “inappropriate” comments to her as he “would come by [her] work station and ask [her] was [she] ready to do the lap dance.” (Pl. LR 56.1 Resp. ¶ 223; Pl. LR 56.1 Stmt. ¶ 127; 12/1/05 Johnson Dep. at 99.) In any case, though Johnson approached Jenkins because he had been in management for a long time, (12/1/05 Johnson Dep. at 97), she acknowledged that she knew that Jenkins “had no pull in promoting [her]” and “wasn’t talking about doing a lap dance for him.” (7/24/06 Deposition of Lillie Johnson at 156-58, Tab UU to Def. LR 56.1 Stmt.)
Though Jenkins had previously supervised Johnson, he was not her direct supervisor in 2002. (Def. LR 56.1 Stmt. ¶ 204.) The parties disagree, however, whether Jenkins was in Johnson’s line of reporting and whether he had authority to hire, fire, or evaluate Johnson. Citing only the declaration of Bill Miller, Defendant claims that Jenkins was not in Johnson’s line of report and that he did not have such authority. (Id. ¶ 221; Miller Decl. ¶ 48.) Plaintiff disputes this, citing her performance review in March 2002, which is signed by Jenkins in his capacity as “superintendent,” and Johnson’s declaration that Jenkins was her superintendent in 2002. (Pl. LR 56.1 Resp. ¶ 221; Pl. LR 56.1 Stmt. ¶ 129; March 20, 2002 Johnson Performance Evaluation, Tab BB to Def. LR 56.1 Stmt.; Declaration of Lillie Johnson ¶ 5, Ex. 11 to Pl. LR 56.1 Resp.)
The parties also dispute whether Johnson felt harassed at any point after 2002. Defendant claims that Johnson did not feel harassed after 2002 based on her testimony that during the time period Angela Isaacs was her supervisor—from November 4, 2002 to February 1, 2004—she did not feel that she was harassed by any other employees. (Def. LR 56.1 Stmt. ¶¶ 204, 224, 12/1/05 Johnson Dep. at 104-05.) Plaintiff, on the other hand, notes Johnson’s testimony that she saw

40

According to Johnson, she feared retaliation because of the way she was treated

years earlier by Dave Ridenour after she complained to Ridenour that she was offended by another

employee’s use of the term “nigger-rigging.” (Def. LR 56.1 Stmt. ¶¶ 222, 229.)

48

pictures of naked women on the desk of a co-worker, Ray Conley, in Building K at some point in 2003 and, in 2006, saw a picture of a scantily-clad woman with bare breasts in an area where employees eat in Building H. (Pl. LR 56.1 Resp. ¶ 224; Def. LR 56.1 Stmt. ¶ 26; Pl. LR 56.1 Stmt. ¶ 130.) Johnson admits she did not report this photo display to her union steward, supervisor, or anyone in Caterpillar’s labor relations or human resources departments. (Def. LR 56.1 Stmt. ¶ 226.) According to Johnson, she made no such report because she feared that her supervisor would retaliate against her. (Id. ¶ 227.)41 Johnson also claims to have feared that Mike Groff in human resources would retaliate because he once failed to follow up on conversations they had concerning Johnson’s promotion. (Id. ¶ 228; 12/1/05 Johnson Dep. at 138.) Finally, Johnson testified that she feared retaliation from Bob Bend in human resources “[b]ecause he is a part of human resources,” and Bill Miller in labor relations because she believed “he [did] not like people of color.” (Def. LR 56.1 Stmt. ¶ 228; 12/1/05 Johnson Dep. at 141.)
On March 28, 2004, Johnson filed an EEOC charge alleging that Caterpillar discriminated against her on the basis of age and race by failing to promote her. (Def. LR 56.1 Stmt. ¶ 211.) She made no mention of sexual harassment or sex discrimination in this charge, and did not file any other EEOC charge making such claims. (Id. ¶¶ 212-13.)
b. Sexual Harassment
In this action, Plaintiff brings a sexual harassment claim on Johnson’s behalf. Defendant contends that Johnson’s allegations of harassment are not sufficiently severe or pervasive to establish an actionable work environment and that, in any case, there is no basis for imputing liability to Defendant. (Def. Mem. at 19.) Defendant also argues that the majority of Johnson’s

41

Defendant asserts that Johnson’s supervisor in 2003 when she saw pictures of a

naked woman on Conley’s desk was Sandy Irvin. (Def. LR 56.1 Stmt. ¶ 227.) While Plaintiff does

not dispute this fact and Johnson so testified, (Pl. LR 56.1 Resp. ¶ 227; 12/1/05 Johnson Dep. at

136), the court notes that Plaintiff and Defendant have also agreed that Angela Isaacs, not Sandy

Irvin, was Johnson’s direct supervisor in 2003. (Def. LR 56.1 Stmt. ¶ 204.)

49

allegations are untimely, and that Johnson never reported her timely allegations of harassment. (Id.) Plaintiff contends that Johnson was subject to severe or pervasive harassment, and that the court should consider all of the incidents of harassment Johnson now alleges. (Pl. Response at 24-27.) Moreover, Plaintiff argues, Defendant cannot succeed in raising the Ellerth/Faragher affirmative defense because Johnson did not receive a copy of Defendant’s prohibited harassment policy and Defendant’s efforts to prevent co-worker and supervisor harassment were inadequate. (Id. at 27.)
The court first turns to the timeliness of Johnson’s allegations of harassment. The EEOC charge underlying this action was filed by Karon Lambert on February 5, 2002. According to Defendant, any allegations relating to harassment before April 11, 2001 cannot support Plaintiff’s claim on behalf of Johnson because such harassment would have occurred more than 300 days before Lambert filed her EEOC charge. (Def. Mem. at 20.) Plaintiff concedes that the timeliness of Johnson’s claims should be measured from the date of Lambert’s EEOC charge, but contends that the court should consider all of the acts of harassment alleged because they are of the same nature and part of the same pattern. (See Pl. Response at 26 (“The harassing conduct Johnson alleges occurred more than 300 days prior to the filing of the underlying charge on February 5, 2002, is part of the same pattern of harassment . . . .”)
Defendant is correct that a charge underlying a Title VII action must be filed within a certain number of days—in this case, 300 days—after the unlawful employment practice occurred. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). Because a “hostile work environment claim is composed of a series of separate acts that collectively constitute ‘one unlawful employment practice,’” the Supreme Court has held that as long as one act contributing to the claim occurred within the statutory period, the court may consider acts outside of the statutory period. Id.; Lucas v. Chicago Transit Auth., 367 F.3d 714, 723-24 (7th Cir. 2004) (citing Morgan, 536 U.S. at 117). Of course, the district court must determine “whether the acts about which an employee complains are
50

part of the same actionable hostile work environment practice. . . .” Morgan, 536 U.S. at 120. If

the act within the statutory time period has no relation to the earlier acts, “or for some other reason,

such as certain intervening action by the employer, was no longer part of the same hostile

environment claim, then the employee cannot recover for the previous acts. . . .” Id. at 118. In

Morgan, the Court approved of the lower court’s approach to determining whether acts outside of

the statutory time period were part of the same hostile environment claim as acts within the

statutory period; the lower court had considered whether “the pre- and post-limitations period

incidents involve[d] the same type of employment actions, occurred relatively frequently, and were

perpetrated by the same managers.” Id. at 120 (quoting Morgan v. Nat. R.R. Passenger Corp., 232

F.3d 1008, 1017 (9th Cir. 2000)). This court will use the same approach here.

As set forth in its response brief, Plaintiff considers the following to be harassing acts that

contributed to Johnson’s hostile work environment:

•

Bob Smith, Johnson’s supervisor, whom Johnson had seen rub his arm against a

co-worker’s breast, touched Johnson on the buttocks and twice tried to rub his arm

against her breast (1998);

•

When Johnson asked about a promotion, Smith asked her if she wanted to sleep

her way up; and when Johnson told Smith she was not interested, Smith responded

by asking if he was not black enough (1998 or 1999);

•

Someone left a rubber penis at Johnson’s work station (1999 or 2000);

•

Smith threatened to hit Johnson across her “fat ass” if she broke another wheel

(2000);

•

When Johnson asked about getting a job in the office, Jenkins (whose supervisory

status is disputed), told Johnson that her degree would not do her any good without

a couple of lap dances and later came to her work area a couple of times to ask if

she was ready to lap dance (2002); and

•

Johnson saw pictures of naked women on a daily basis (1988-November 2001), saw

a picture of a naked woman on a co-worker’s desk in 2003, and saw a picture of a

scantily-clad woman in an area where employees eat in 2006. (Pl. Response at 24-

25.)

Defendant does not dispute that Jenkins’ comments about a lap dance and Ray Conley’s photo

display both occurred during the statutory period. (Def. Mem. at 20-21.) The court therefore

51

reasonably infers that Defendant would not object to including the incident in which Johnson saw a picture of a scantily-clad woman displayed in 2006 as part of this same claim. Based on the factors approved of in Morgan—whether the “pre- and post-limitations period incidents involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers”—the court also considers Johnson’s daily exposure to pictures of naked women from 1988 to November 2001 to be part of the same hostile work environment claim. See Morgan, 536 U.S. at 120 (citation omitted). While it is not clear who was responsible for displaying these pictures, this exposure occurred frequently, on a daily basis, and was similar to conduct that occurred within the statutory period—specifically, Johnson’s exposure to pictures of naked women from April 11, 2001 to November 2001. See id. at 120.
The remaining conduct that occurred outside the statutory period includes the incident in which a rubber penis was left at Johnson’s work station. Assuming in Plaintiff’s favor that this act was in fact based on Johnson’s sex, the court nevertheless will not consider the incident as part of Johnson’s hostile work environment claim. The perpetrator of this one-time incident is unknown, and it is not similar in type to any of the conduct committed during the statutory period. Cf. Avdyli v. Barnhart, No. 05-C-2132, 2007 WL 57601, *10 (N.D. Ill. Jan. 3, 2007) (to the extent prelimitations acts that were of the same type as the post-limitations act and occurred frequently, they were properly part of same hostile work environment claim).
Plaintiff also claims that Bob Smith’s conduct forms part of the same claim, as those acts that occurred within the statutory period. As a preliminary matter, the court is not convinced that Smith’s threat that he would hit Johnson across her “fat ass” if she broke another wheel was based on Johnson’s sex. It is undisputed that Smith made this comment at a time when he was disturbed that Johnson had broken several grinder wheels. (Def. LR 56.1 Stmt. ¶ 246.) In any case, the court does not conclude that this comment or Smith’s other conduct—in 1998 or 1999 he made offensive comments to Johnson and, in 1998, he touched her on the buttocks and twice tried to rub his arm
52

against her breast—form part of the same hostile environment claim with acts that occurred within the statutory period. While it is true that Smith’s 1998 comment to Johnson regarding whether she wanted to “sleep her way up” bears some similarity to Jenkins’ offensive “lap dance” comments in 2002, Smith was not the perpetrator of any of the harassing acts that occurred within the statutory time period. See Avdyli, 2007 WL 57601, *9 (conduct of different perpetrator not part of same hostile environment claim). To the extent that Smith’s allegedly harassing conduct consisted of physical contact or attempted physical contact, the conduct is entirely different in type than conduct that occurred within the statutory period. Moreover, none of Smith’s conduct before the statutory period occurred with any frequency. In the three years before the statutory period, Smith subjected Johnson to, at most, five harassing acts; he once touched Johnson’s buttocks, twice tried to rub his arm against her breast, and made offensive remarks to Johnson on one or possibly two occasions. The court therefore views Johnson’s hostile environment claim as consisting only of Jenkins’ comments to Johnson in 2002 and Johnson’s exposure to pictures of naked or scantily-clad women from 1988 to 2001, on a co-worker’s desk in 2003, and in an area where employees eat on one day in 2006.
Defendant does not raise the argument that Johnson herself did not find her work environment to be hostile until its reply brief, (Def. Reply at 19); thus, the court need not consider it. See Adamson, 441 F.3d at 521 (citing Blaylock, 413 F.3d at 619) (arguments raised for first time in reply brief are waived). In any case, the court finds that Defendant is entitled to summary judgment on Johnson’s claim on other grounds described below; the court therefore assumes, for analytical purposes, that Johnson did find her work environment to be hostile.
Again, in assessing Plaintiff’s claim that Johnson’s work environment was objectively hostile, the court must consider the totality of the circumstances, including the frequency and severity of the conduct; whether it is threatening or humiliating, and whether it “unreasonably interferes” with work performance. See Faragher, 524 U.S. at 787-88 (quoting Harris, 510 U.S. at 23). The
53

offensive comments made by U.B. Jenkins about Johnson giving him a lap dance, which Johnson never reported, were made on only two occasions. See Baskerville, 50 F.3d at 430-31 (citation omitted) (“The infrequency of the offensive comments is relevant to an assessment of their impact. A handful of comments spread over months is unlikely to have so great an emotional impact as a concentrated or incessant barrage.”) A question of fact exists as to whether Jenkins was Johnson’s supervisor, and his comments were certainly inappropriate for the workplace, but they constitute offensive utterances, not severe misconduct.
A comparison to Baskerville, a case in which the plaintiff alleged hostile work environment sexual harassment based on nine different comments made to her by her supervisor over a sevenmonth period, is useful. Id. at 430. Some of the comments at issue in Baskerville, for example, that the plaintiff’s supervisor called her a “pretty girl” and made other comments about women that did not address the plaintiff specifically, are not as troubling as Jenkins’ comments which were addressed directly to Johnson. But, on one occasion, the supervisor in Baskerville stopped at the plaintiff’s desk while an announcement was being broadcast over the public-address system and told her that “all pretty girls” were supposed to “run around naked.” Id. at 430. Even considering this comment in combination with the eight other comments that the plaintiff found to be harassing, the Baskerville court did not find that the supervisor’s offensive utterances amounted to actionable harassment. Id. at 430-31. Jenkins’ comment might be considered more offensive than those made by the supervisor in Baskerville if the lap dance could reasonably be construed as the “quid pro quo” for a promotion, but Johnson herself testified that Jenkins did not have influence over whether she would be promoted and was not actually asking her to do a lap dance for him. (7/24/06 Johnson Dep. at 156-58.)
The court, of course, must view Jenkins’ comments together with the other conduct that forms Johnson’s hostile work environment claim—that she saw pictures of naked women on a daily basis from 1988 through November 2001, saw another picture of a naked woman displayed on a
54

co-worker’s desk in 2003, and saw a picture of a scantily-clad woman in an area where employees eat on one day in 2006. (Pl. Response at 24-25.) Johnson admits that she never complained about these pictures, though she found them distracting. (Pl. LR 56.1 Stmt. ¶¶ 123-24; Def. LR 56.1 Stmt. ¶ 250.) The Seventh Circuit has noted that “pornographic pictures” differ from “occasional vulgar banter” in severity. Patton, 455 F.3d at 816 (citing Baskerville, 50 F.3d at 430). Here, there is evidence that at least some of the images to which Johnson was exposed were pornographic, and Johnson’s exposure to the pornography was an everyday occurrence for over a decade. Still, there is no evidence in the record that Johnson’s observance of these images was anything more than indirect: although they were displayed in places where Johnson could see them, the images were not specifically displayed or shown to her, nor were they displayed anywhere but in other employees’ personal work space. See Baskerville, 50 F.3d at 431 (finding that supervisor’s offensive comments did not amount to actionable harassment and noting, among other things supervisor did not do, that he “did not show [plaintiff] dirty pictures.”). The one exception is a picture that Johnson specified as being in a public area—an area where employees eat—but Johnson saw this picture on only one day, September 10, 2006. (Pl. LR 56.1 Stmt. ¶ 130.) In fact, Plaintiff states only vaguely that the pictures Johnson saw from 1998 to 2001 were located at “various work stations.” (Id. ¶ 123.) Plaintiff does not specify the work station of any particular employee or credit the display of such pictures to any particular employee or group of employees and elaborates in its brief only by stating that such pictures were displayed “at employees’ work stations, such as on their desks or tool boxes.” (Pl. Response at 25.) See Yuknis v. First Student, Inc., 481 F.3d 552, 555 (7th Cir. 2007) (noting the difference between a manager watching pornography on his computer at work and pornographic pictures being displayed on the walls of the workplace or being e-mailed to the plaintiff); cf. Scott-Riley v. Mullins Food Prods., Inc., 391 F. Supp. 2d 707, 718 (N.D. Ill. 2005) (citations omitted) (“Though pornographic pictures not directed
55

at a plaintiff . . . may not constitute a hostile environment . . ., pictures of naked women repeatedly placed on a plaintiff’s desk are different.”)
It is well-accepted that harassment not directed at an individual has a lesser impact on that individual. See Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir. 1997) (“The impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff.”) (quoting Rennie v. Dalton, 3 F.3d 1100, 1107 (7th Cir. 1993)). Considering together the indirect, though prolonged, nature of Johnson’s exposure to explicit materials that were kept at other employee’s work stations and Jenkins’ infrequent offensive comments to Johnson, the court cannot conclude that a reasonable person would find this work environment to be hostile. Defendant is entitled to summary judgment on Johnson’s sexual harassment claim.
5. Wendy Hollenback-Smithburg a. Factual Background
Wendy Hollenback-Smithburg (“Smithburg”) was hired by Caterpillar to work as an hourly employee at its Aurora facility in March 1989. (Def. LR 56.1 Stmt. ¶ 264.) Smithburg recalls reviewing the sexual harassment policy when she began working at Caterpillar, and that the policy was one of “zero tolerance.” (Id. ¶ 265.) She also admits that she has seen copies of the prohibited harassment policy posted where she enters work, and believes the policy has been posted in that same spot for a long time. (Id. ¶ 271.) Smithburg further recalls attending a “diversity training course” in the early to mid-1990's at which Caterpillar’s sexual harassment policy was discussed; Smithburg understood that she could report harassment to her supervisor. (Id. ¶ 272.) She also attended a four-hour training course on Caterpillar’s prohibited harassment policy on January 16, 2002. (Id. ¶ 303.)
In May 1990, Smithburg was accepted into a tool maker apprentice program, which she completed in June 1996. (Id. ¶ 266.) Approximately fifteen other employees were in her
56

apprenticeship group, including Dean Morrissette. (Id.) According to Smithburg, in or about 1990, Morrissette followed her home in his car after they attended a class together at Waubonsee College, told her he wanted to talk to her, and asked if he could kiss her hand, to which Smithburg responded “no.” (Id. ¶ 267.) Smithburg did not report the incident and Morrissette later apologized to her. (Id.)42
By the late 1990's, Smithburg was working as a tool maker on the second shift and, as an hourly employee in the tool room, she was a member of the UAW. (Id. ¶ 269.) This tool room, located in Building B, was about as large as a football field. (Id. ¶ 270.) Smithburg claims that while she was working in there in 1994 or 1995, Doug Holman, then a tool room supervisor, grabbed her buttocks, put his arm around her neck, and told her that her “ass looked good in
jeans.” (Id. ¶ 273.) Smithburg complained to Dick Roberts, the head supervisor in the tool room, and to Roberts’ and Holman’s boss, Jerry Leonard. (Id.) Smithburg later learned that Roberts and Leonard spoke to Holman, and Smithburg does not recall Holman ever behaving inappropriately towards her again. (Id.)
At some point in or about 1999, Smithburg reported to Morrissette (who was by then her supervisor) that a co-worker, Glen Thomas, would sometimes sit and stare at her. (Id. ¶ 274.) After Smithburg reported Thomas’ behavior, it stopped. (Id.) At some point in 1999, a condom was left on Smithburg’s desk and she reported the incident to Doug Holman, who still served as a supervisor. (Id. ¶ 275.) Holman told Smithburg that he would deal with it and, although she testified that she was not aware of any investigation, Holman did meet with employees on Smithburg’s shift after the incident and distributed a document entitled You Make a Difference – Sexual Harassment in the Workplace. (Id.; Deposition of Wendy S. Hollenback-Smithburg at 71-72, 84-85, Ex. CC to

42

Defendant notes, and Plaintiff does not dispute, that in the early 1990's Smithburg

had gone on one date with and had sex with Morrissette, after which they did not date but continued

to have a friendly relationship. (Def. LR 56.1 Stmt. ¶ 268.)

57

Def. LR 56.1 Stmt.) Smithburg also reviewed this document in June 1999 and was aware that it instructed employees to report any conduct that they thought subjected them to sexual harassment. (Def. LR 56.1 Stmt. ¶ 275.)
As of late 1999 or early 2000, Smithburg was working as a “make” tool maker and reported to a supervisor, Don McNeill. (Id. ¶ 276.) In 2001, Smithburg reported to McNeill that an outside contractor—not a Caterpillar employee—had repeatedly asked her to go out with him. (Id. ¶ 277.) After she reported the conduct to McNeill, the conduct stopped. (Id.) In 2001, Smithburg found the word “Bitch” scratched on one of her filing cabinets. (Id. ¶ 278.) Smithburg reported this to McNeill and the filing cabinet was removed and repainted. (Id.) As a result of this incident and the incident in which a condom was left on Smithburg’s desk, Caterpillar placed a surveillance camera in Smithburg’s work area, which Caterpillar maintained for approximately a year. (Id. ¶ 279.) Plaintiff also claims that Dean Martin, the superintendent from the tool room from October 2000 to the present, made a comment to Smithburg about how nice her breasts looked. (Pl. LR 56.1 Stmt. ¶ 97.) According to Plaintiff, Morrissette was present at the time but did not report Martin’s comments to anyone. (Id. ¶ 97; Morrissette Dep. at 63-65.)43
In the summer of 2001, Smithburg, who was at that time assigned to work the second shift, complained to McNeill that she was receiving calls at home from Morrissette, who was at that time a first-shift supervisor. (Def. LR 56.1 Stmt. ¶ 280.) Smithburg testified that Morrissette would call to question her about her work, and would then make comments about dating or having sex, including asking her to “fuck.” (Id.; Pl. LR 56.1 Stmt. ¶ 92; Hollenback-Smithburg Dep. at 95.) After Smithburg reported the calls to McNeill, McNeill instructed Morrissette not to contact Smithburg outside of the workplace and the phone calls ceased for approximately three months. (Def. LR 56.1 Stmt. ¶ 280; Pl. LR 56.1 Stmt. ¶ 93; Hollenback-Smithburg Dep. at 96.) Prior to this incident,

43

Martin denies ever making a comment to Smithburg about her breasts, (Def. LR 56.1

Resp. ¶ 97; Deposition of Dean Martin at 73, Ex. DD to Def. LR 56.1 Stmt.), but for purposes of this

motion the court assumes that he did so.

58

Smithburg had not complained to a supervisor or manager about any inappropriate conduct by Morrissette. (Def. LR 56.1 Stmt. ¶ 280.)
Plaintiff contends that other conduct by Morrissette also constituted harassment. Smithburg testified that Morrissette frequently made comments to her about her breasts and her body, and often told her that he wanted to “fuck her.” (Pl. LR 56.1 Stmt. ¶¶ 94, 96.) Morrissette denied making any such comments. (Def. LR 56.1 Resp. ¶¶ 94, 96; Morrissette Dep. at 115.) It is not disputed, however, that at some point or points between 1998 to 2000, Morrissette put his hands on Smithburg’s thighs. (Pl. LR 56.1 Stmt. ¶ 95.)44
On March 7, 2002, Smithburg reported to McNeill that a full-page newspaper advertisement for breast enlargement was left at her workstation. (Def LR 56.1 Stmt. ¶ 282.) She also complained that Morrissette had been calling her at home again. (Id.; Hollenback-Smithburg Dep. at 92-95.) In response to the complaint about the newspaper advertisement, McNeill contacted Dean Martin, the tool room superintendent, and the two men convened a meeting of all the workers on Smithburg’s shift, telling them that what had occurred was “unacceptable behavior.” (Def. LR 56.1 Stmt. ¶ 285; Hollenback-Smithburg Dep. at 93-94.)
Also on March 7, 2002, Smithburg met with Martin and with Paul Walker, her union steward, and amplified her concerns about Morrissette’s conduct. (Def. LR 56.1 Stmt. ¶ 282.) She reported that Morrissette had once asked in a safety meeting whether anybody had “any bitches they want to get out,” that he had repeatedly asked her out in the past, that he made derogatory comments

44

Defendant challenges Plaintiff’s statement that Morrissette put his hands on

Smithburg’s thighs, but has not cited evidence to the contrary. (Def. LR 56.1 Resp. ¶ 95.)

Morrissette denied many of Smithburg’s allegations, but Morrissette was not asked, and therefore

did not deny, putting his hands on Smithburg’s thighs, nor was he asked more generally whether

he ever touched Smithburg. (Morrissette Dep. at 115-17.) Nor does the fact that Smithburg did not

mention this inappropriate touching when she complained to Caterpillar about Morrissette in March

2002 directly contradict her testimony that Morrissette touched her thighs. (Def. LR 56.1 Stmt. ¶

95.) Likewise, Morrissette’s denial that he had acted inappropriately towards Smithburg after her

2000 complaint about him, does not contradict Smithburg’s assertion that Morrissette put his hands

on Smithburg’s thighs between 1998 and 2000. (Id.)

59

about her children and her husband, and that he repeatedly made comments about her body. (Id. ¶ 283.) Smithburg recalls that Martin responded by saying that “he should have put two and two together,” and assured her that she had the right to work in an harassment-free environment, and promised that her allegations would be further investigated. (Id. ¶ 284.) Martin instructed Morrissette to stay away from Smithburg during the investigation. (Id. ¶ 285.)
Martin proceeded to report Smithburg’s allegations to Bill Miller, who conducted an investigation in which he spoke to a number of witnesses, as well as Smithburg and Morrissette. (Id. ¶ 286; Deposition of Bill Miller at 134, 140, Ex. W to Def. LR 56.1 Stmt.; Miller Dep. Ex. 9, Ex. W to Def. LR 56.1 Stmt.) Dean Martin also interviewed certain individuals about Smithburg’s allegations and provided that information to Miller. (Def. LR 56.1 Stmt. ¶ 287.)45 Several of the persons Miller interviewed told him that the relationship between Morrissette and Smithburg appeared to be a friendly one and that they had seen Smithburg approach Morrissette’s desk and speak to him for extended periods of time. (Id. ¶ 288.) For his part, Morrissette denied that he had engaged in the inappropriate actions alleged by Smithburg; he admitted that he had telephoned her at home in response to pages he received from her to talk about “general matters,” but he denied ever asking her for sex. (Id. ¶ 289.) Morrissette also told Miller that he had obtained statements from employees to defend himself against Smithburg’s allegations. (Pl. LR 56.1 Stmt. ¶ 100.)46
On March 13, 2002, Miller interviewed Smithburg in the presence of her union representatives, Tom Crossen and Paul Walker. (Def. LR 56.1 Stmt. ¶ 290.) Smithburg reported during this interview that Morrissette had harassed her for thirteen years since the time they were

45

Plaintiff asserts that the record citations do not establish that Dean Martin

interviewed certain individuals and gave such information to Miller, (Pl. LR 56.1 Resp. ¶ 287), but

Miller stated exactly that in his declaration. (Miller Decl. ¶ 62.) Miller also testified that he

interviewed a number of individuals regarding Smithburg’s allegations. (Miller Dep. at 134, 140.)

46

The court is uncertain of the nature of these statements, the circumstances in which

they were obtained, or the extent, if any, to which they may have influenced or interfered with

Miller’s investigation.

60

apprentices together and that he had often asked her for sex. (Id.) Smithburg told Miller that she would be satisfied if Morrissette’s inappropriate conduct were to end, and that she did not want to have any further contact with him. (Id. ¶ 291.) Miller counseled Smithburg to bring any problems or concerns she might have in the future directly to him. (Id. ¶ 292.) He also pointed out that McNeill, not Morrissette, was the second-shift supervisor and that Morrissette would have no impact on Smithburg’s performance evaluation. (Id. ¶ 293.) In fact, Morrissette had no authority to transfer, demote, suspect, discharge Smithburg. (Id. ¶ 294.)
Based on his investigation, Miller was unable to conclude whether Smithburg’s allegations were true, but Morrissette was given a five-day suspension for unbecoming conduct that was not specifically related to Smithburg’s allegations. (Id. ¶ 295.) The parties agree that Morrissette’s suspension was not imposed as punishment for engaging in sexual harassment. (Pl. LR 56.1 Stmt. ¶ 98.) Rather, at some point Miller learned that Morrissette had told Smithburg about the security camera installed in her work area (information that had been disclosed to Morrissette in confidence), and had warned her that he “could get anybody fired.” (Id. ¶ 99.) Morrissette was punished for having shared confidential information, for spending excessive amounts of time with Smithburg, and for making intimidating comments to other employees. (Id. ¶ 98; Miller Dep. at 14142.)
The Union also filed a grievance on Smithburg’s behalf for “harassment” arising from her March 2002 allegations against Morrissette. (Def. LR 56.1 Stmt. ¶ 296; Pl. LR 56.1 Stmt. ¶ 98.) Caterpillar and the union agreed that Morrissette would not supervise Smithburg or have any influence over her job. (Def. LR 56.1 Stmt. ¶ 295.) This agreement was honored; Morrissette did not supervise Smithburg between the spring of 2002 and October 2004, nor did Smithburg have any contact with Morrissette during this period of time. (Id. ¶ 297.) On August 27, 2002, Smithburg signed a document confirming that her union grievance was resolved to her satisfaction. (Id. ¶ 296; Pl. LR 56.1 Stmt. ¶ 98.)
61

In October 2002, Smithburg moved voluntarily to the third shift as an “auto-call” tool maker reporting to Ron Mueller, a position in which she remained through October 2004; in this position, Smithburg spent most of her time fixing tooling within the Aurora facility and outside of the Building B tool room. (Def. LR 56.1 Stmt. ¶ 298.) While working in this position, Smithburg discovered explicit pictures of women on more than one occasion; in each instance, after Smithburg complained, the pictures were removed within about a week. (Id. ¶ 300; Pl. LR 56.1 Stmt. ¶ 101.) In one instance, Smithburg saw a sex novelties catalog that had nudity on the cover in a trash can in the auto-call area; she complained to a supervisor about it and the catalogue was removed. (Def. LR 56.1 Stmt. ¶ 301.) Smithburg also complained about a sticker on a co-worker’s cabinet that read “I know why women live longer. They don’t have wives.” (Id.) The sticker was taped over within a few days of Smithburg’s complaint. (Id.)
In October 2004, Smithburg chose to downgrade to a lower paying position as a “layout developer” so that she could work the first shift and be home with her family at night. (Id. ¶ 304; Pl. LR 56.1 Stmt. ¶ 102; Hollenback-Smithburg Dep. at 48-49.) When Smithburg bid to switch to this position, she was aware that it could bring her under the supervision of either Dean Morrissette or Mike Martens. (Def. LR 56.1 Stmt. ¶ 305.) After she was awarded the bid, Dean Martin, then the superintendent of the tool room, informed her that Morrissette would be her supervisor and gave her the opportunity to withdraw the bid. (Id.) Smithburg chose to accept the position, though she understood that Martin would not make changes that would enable her to report to someone other than Morrissette. (Pl. LR 56.1 Stmt. ¶¶ 105-06.) Plaintiff notes that there were no other first-shift positions available in the tool room at the time Smithburg bid on the layout developer position, but it is undisputed that there were other positions available on the first shift that would not have resulted in a change of pay for Smithburg and did not report to Morrissette. (Def. LR 56.1 Stmt. ¶ 306; Pl. LR 56.1 Resp. ¶ 306; Pl. LR 56.1 Stmt. ¶ 104; Hollenback-Smithburg Dep. at 182-83.)
As a layout developer on the first shift, Smithburg worked in the tool room. (Pl. LR 56.1
62

Stmt. ¶ 107.) The parties agree that there are two supervisors in the tool room during the first shift. (Id. ¶ 108.) When Morrissette became a supervisor in 1998, he supervised the tool makers while the other supervisor was responsible for the machinists and welders and the layout developer. (Id.) Nevertheless, although she was working as a layout developer, she reported to Morrissette, instead of the other supervisor on the first shift. (Id. ¶ 109.) According to Plaintiff, Martin refused to allow Smithburg to report to the other supervisor. (Id.) Defendant purports to dispute this fact, but the evidence cited by Defendant establishes only that Smithburg reported to Morrissette because her work was similar to the work of the tool makers whom Morrissette supervised. (Def. LR 56.1 Resp. ¶ 109.) Morrissette himself testified that Smithburg could have been assigned to report to the other supervisor. (Pl. LR 56.1 Stmt. ¶ 111.)47 Morrissette explained that at the same time Smithburg was bidding to switch to the first shift, his brother was also bidding on that particular job and that if Morrissette’s brother received the job, Martin said he would have no choice but to swap Morrissette with the other first-shift supervisor so as to ensure that Morrissette was not supervising his brother. (Id. ¶ 110.) Defendant notes that a policy existed that would have precluded Morrissette from directly supervising a direct relative, (Def. LR 56.1 Resp. ¶ 110), but does not explain why a swap could not have been made for other reasons.48
While Smithburg worked on the first shift, she learned from male co-workers that offensive graffiti was posted in the men’s bathroom about her. (Def. LR 56.1 Stmt. ¶ 308.) After her coworkers reported the graffiti to Morrissette, Smithburg was informed that the bathroom door

47

Defendant disputes this fact, but the evidence Defendant cites does not establish

that Caterpillar could not assign Smithburg to another supervisor—it shows only that Caterpillar did

not make such an arrangement, that Smithburg was given an opportunity to withdraw her bid, and

that she did not request to report to someone else. (Def. LR 56.1 Resp. ¶ 111.)

48

Defendant contends that Morrissette’s testimony that his brother bid on the layout

developer position is based on hearsay. (Def. LR 56.1 Resp. ¶ 110.) Although the foundation for

this testimony is not clear, Morrissette made no reference to an out-of-court statement; the court

presumes he could have observed his brother bidding on the job or have seen the completed bid

form. Moreover, Defendant did not raise a hearsay objection to this testimony during Morrissette’s

deposition. (Morrisette Dep. at 225-28.)

63

containing the graffiti had been removed. (Id.; Hollenback-Smithburg Dep. at 249-59.) According to Smithburg, Morrissette again began to make inappropriate comments to her in January or February of 2005, including telling her, after he found out she had separated from her husband, that he wanted to “fuck [her],” that she “was a slut and he liked that,” and that she “was going to be his third wife.” (Def. LR 56.1 Stmt. ¶ 307; Pl. LR 56.1 Stmt. ¶¶ 112, 114; Hollenback-Smithburg Dep. at 178-79.) Although Defendant itself submitted evidence of the “third wife” comment, Defendant disputes that Morrissette ever told Smithburg that he wanted to “fuck her” or that he ever called Smithburg a slut. (Def. LR 56.1 Resp. ¶¶ 112, 114.) Smithburg testified that her work relationship with Morrissette was “okay” as of July 2005; though Morrissette was “saying things and doing things” at that point—for example, telling Smithburg that he loved her—Smithburg characterized such conduct as a “nuisance.” (Def. LR 56.1 Stmt. ¶ 309.)
Morrissette engaged in more troublesome conduct in 2005. Smithburg testified that, in 2005, Morrissette told her that she had gotten him in trouble in the past and warned her not to try it again; specifically, Morrissette said to her, “I’ll fucking kill you if you turn me in again.” (Pl. LR 56.1 Stmt. ¶ 113.) In August of 2005, Morrissette accused Smithburg of having sex with a male coworker. (Id. ¶ 115.) Also in 2005, according to Plaintiff, Morrissette showed up at her house uninvited between 10:00 and 11:00 pm and grabbed her around the waist when she opened the door. (Id. ¶ 117.) Although Defendant disputes that this incident occurred in 2005, Morrissette acknowledged that he had been to Smithburg’s home (though he did not say when). (Def. LR 56.1 Resp. ¶ 117; Morrissette Dep. at 191-92.)
Around August 7, 2005, Morrissette spoke to Smithburg about his desire for a date with Collette Truckinbord, Smithburg’s co-worker and close friend. (Def. LR 56.1 Stmt. ¶ 310.) Morrissette told Smithburg that he thought Truckinbord had a “hot” little body and that he wanted
64

to “do” her. (Pl. LR 56.1 Stmt. ¶ 116.) Smithburg’s notes49 about the conversation indicate that she did not think the situation between Morrissette and Truckinbord was any of her business. (Def. LR 56.1 Stmt. ¶ 310.)50 Smithburg then had a discussion with her union steward, Jim Habben, about Morrissette’s intention to ask Truckinbord out. (Id. ¶ 311.) Smithburg did not characterize her conversation with Habben as a complaint about harassment, and testified that she and Habben were friends and he was somebody to talk to about something that was bothering her “a little bit” because Truckinbord “didn’t seem receptive.” (Smithburg Dep. at 265-66.) On or about August 8, 2005, Habben contacted Doug Howell, a labor relations representative, on Smithburg’s behalf concerning issues related to Morrissette. (Def. LR 56.1 Stmt. ¶ 312.) After Howell interviewed a number of individuals regarding allegations of Morrissette’s inappropriate conduct, including Smithburg and Truckinbord, Morrissette was removed from his supervisory responsibilities in the tool room and shortly thereafter terminated for violating Caterpillar’s harassment policy. (Id. ¶¶ 31213.) Smithburg has not been subject to inappropriate conduct since Morrissette was removed as her supervisor. (Id. ¶ 314.)
b. Sexual Harassment Claim
Plaintiff now brings a sexual harassment claim on Smithburg’s behalf. Defendant contends that Smithburg’s allegations, viewed objectively or subjectively, are insufficient to establish an actionable hostile environment, that Smithburg unreasonably failed to bring forward complaints of harassment, and that Defendant exercised reasonable care to prevent and remedy any alleged

49

Smithburg did not testify in any detail as to why she was keeping notes of various

incidents that occurred in her workplace between August 4, 2005 and August 7, 2005. Smithburg

recalls that “she was asked to sit down and write this” and that she believes she wrote the notes

all at the same time, though she did not say when she wrote the notes or who asked her to write

them. (Hollenback-Smithburg Dep. at 220-21.)

50

Plaintiff disputes this fact because Defendant failed to attach its supporting exhibit,

Smithburg’s notes, to its statement of material facts. (Pl. LR 56.1 Resp. ¶ 310.) Defendant

submitted this exhibit to the court and counsel after realizing its omission and the court will consider

it.

65

harassment. (Def. Mem. at 26-27.) Plaintiff argues that Smithburg was subject to severe or pervasive harassment, that Defendant did not take corrective action calculated to prevent the harassment, and that Smithburg did not unreasonably fail to take advantage of preventative or corrective opportunities. (Pl. Response at 17.)

Of the many events described above, Plaintiff characterizes the following as severe or pervasive harassment:51

•

Morrissette’s conduct in 2001 when he would call Smithburg at home, make sexual

advances, tell her how “hot” her body was, and ask her to “fuck;”

•

Morrissette’s other sexual comments about Smithburg’s breasts and body and

asking her, in person, to “fuck”;

•

Morrissette putting his hands on Smithburg’s thighs between 1998 and 2000;

•

Dean Martin, Johnson’s supervisor, commenting on how nice Smithburg’s breasts

looked;

•

The condom left in Smithburg’s work area at some point in 1999;

•

Smithburg’s exposure to a variety of pornographic materials, including Playboy

magazines in her work area, a sex novelties catalog with some nudity on the cover

in a trash can, an offensive sticker on a cabinet, and an explicit picture of a woman

in the tool room; and

•

Morrissette’s comments to Smithburg after her transfer in 2004, when Morrissette

was her supervisor, that he wanted to “fuck” her, and various other offensive

comments by Morrissette about Smithburg’s body. (Pl. Response at 18-19.)

Defendant first argues that Smithburg herself did not find her work environment to be hostile. (Def. Mem. at 28-30; Def. Reply at 28-30.) Plaintiff does not specifically address this argument, which is supported by evidence that co-workers characterized Smithburg’s relationship with

51

As nearly all of the events of which Smithburg complains involve Morrissette,

Defendant wisely has not raised a timeliness objection to this claim.

66

Morrissette as friendly; Smithburg’s admission to having had consensual sex with Morrissette on one occasion in the 1990's; her willingness to accept a job assignment knowing that Morrissette would be her supervisor; and, her references to Morrissette’s conduct as a “nuisance” and to their “okay” working relationship in mid-2005. (Def. LR 56.1 Stmt. ¶¶ 268, 288, 305, 309.) Viewing the evidence in the light most favorable to the Plaintiff, however, the court declines to enter summary judgment in favor of Defendant on this basis. Although Plaintiff has presented no evidence specifically addressing the effect on Smithburg of the alleged harassment, it is undisputed that she complained on more than one occasion about what she perceived as sexual harassment. Smithburg complained to a supervisor about the presence of materials that she viewed as pornographic in the workplace and reported the 1999 incident during which she found a condom at her work station. (Def. LR 56.1 Stmt. ¶¶ 275, 300-02.) Smithburg did not lodge a complaint about Morrissette’s conduct towards her at the time the allegedly harassing conduct commenced, but she did report Morrissette’s conduct in the summer of 2001 and complained again in March 2002. (Id. ¶¶ 280, 282; Pl. LR 56.1 Stmt. ¶ 92.) Smithburg’s initial delay in reporting Morrissette’s conduct does not defeat her claim; a fair conclusion is that Smithburg delayed in reporting Morrissette’s conduct until it began to alter the terms and conditions of her employment. These multiple complaints create a question of fact as to whether Smithburg found her work environment to be hostile. See Hostetler v. Quality Dining, Inc., 218 F.3d 798, 896-07 (7th Cir. 2000) (evident that employee found work environment hostile when she promptly left work after harassing encounter, promptly reported harassing conduct, and reiterated that behavior was unacceptable when matter was not pursued by her employer in a timely manner); Wyninger v. New Venture Gear, Inc., 245 F. Supp. 2d 976, 985 (S.D. Ind. 2003) (“Since she complained to management, we will assume that [the plaintiff] subjectively perceived these incidents to be abusive and hostile.”); cf. Gleason, 118 F.3d at 1145-46 (employee did not subjectively experience a hostile work environment when she did not bother to report the harassment to any of her superiors despite
67

ample opportunities to do so).
There are disputes concerning whether Smithburg’s work environment was objectively hostile, as well. Morrissette testified that he never made comments of a sexual nature to Smithburg, never made statements about Smithburg’s breasts and body, and never stated that he wanted to “fuck” Smithburg, (Def. LR 56.1 Resp. ¶¶ 92, 96; Morrissette Dep. at 115), but Defendant offered no evidence to rebut Smithburg’s claim that Morrissette put his hands on her thighs between 1998 and 2000. See supra n.44. Morrissette further denied allegations that after he became Smithburg’s supervisor in 2004, he called her at home to ask for sex or made other statements to her of a sexual nature. (Def. LR 56.1 Stmt. ¶¶ 289; Def. LR 56.1 Resp. ¶¶ 112, 114.) And, Dean Martin denied ever having made a comment to Smithburg about her breasts. (Def. LR 56.1 Resp. ¶ 97; Martin Dep. at 73.) Without resolving these disputes of fact, the court cannot determine exactly what harassing conduct was aimed at Smithburg, or whether a reasonable person would find such harassment severe or pervasive.
The disputed conduct at issue was primarily comprised of offensive utterances. Although mere vulgar banter or suggestive comments that are “tepid or intermittent” are not sufficient to support a discrimination claim, Yukins, 481 F.3d at 553, such offensive comments can create an actionable work environment if made with sufficient frequency. See Boumehdi v. Plastag Holdings, LLC, No. 06-406, 489 F.3d 781, 789 (7th Cir. 2007) (jury could conclude that eighteen offensive comments in less than a year and similar comments made “very often” was pervasive enough to create a hostile environment); Jackson v. County of Racine, 474 F.3d 493, 499 (7th Cir. 2007) (“[C]onduct that is not particularly severe but that is an incessant part of the workplace environment may, in the end, be pervasive enough and corrosive enough that it meets the standard for liability.”); see also Hostetler, 218 F.3d at 808 (no magic number of incidents necessary to establish a hostile environment).
In this case, the court is uncertain of the frequency of the alleged offensive conduct.
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Smithburg claims that Morrissette made sexual comments to her and asked her to “fuck” both in person and over the phone during the years 2001 and 2002 and again after he became her supervisor in 2004, but it is not clear how often this conduct occurred. Although Defendant has not rebutted Plaintiff’s claim that Morrissette put his hands on Smithburg’s thighs between 1998 and 2000, neither party has addressed the frequency of this conduct, either. In Plaintiff’s response brief, Plaintiff characterizes the conduct as “repeated,” but the portion of Smithburg’s deposition addressing this conduct makes no reference to its frequency. (Pl. Response at 18; HollenbackSmithburg Dep. at 172.) Without a better understanding of the frequency of the harassing conduct, the court declines to assess whether Defendant took reasonable care to prevent or remedy the harassing behavior, beyond observing that the evidence relating to Morrissette’s behavior as Smithburg’s supervisor suggests that Defendant’s earlier steps to curb Morrissette’s misconduct were ineffective. Defendant’s motion for summary judgment as to Smithburg’s sexual harassment claim is denied.
6. Roxanne Tucker
a. Factual Background
Roxanne Tucker was hired by Caterpillar as a supplemental employee on July 30, 2001 and initially worked as a “Drill Specialist 2" on the third shift. (Def. LR 56.1 Stmt. ¶ 316.) She worked in Building K and moved back and forth among different shifts; in this position, she first reported to John Smith and then to Tony Singh. (Id. ¶ 317.) On October 22, 2001, Tucker was promoted to a third-shift position and continued to report to Singh. (Id. ¶ 318.) During the second half of 2002, Tucker moved to a “class 3" position in Building B; in this position, Tucker reported to Elmar Jurani. (Id. ¶ 319.) By June 2003, Tucker had moved to the position of an assembler and worked in Building H, at which point she reported to Dan Spivey. (Id. ¶ 320.) In October or November 2003, Tucker moved to the 980 line; at that time, she reported to Al Kitterman when working days and to Jed Brooker when working nights. (Id. ¶ 321.) Tucker became a full-time employee, as opposed
69

to a supplemental one, effective February 7, 2005. (Id. ¶ 322.)
When Tucker was first hired, she learned about Caterpillar’s prohibited harassment policy at her new hire orientation, and during her employment she saw the policy posted at the plant. (Id. ¶¶ 323-24.) On October 17, 2003, Tucker received additional training on the prohibited harassment policy, and she testified that she was comfortable taking complaints to various supervisors. (Id. ¶¶ 325-26.)
Tucker first felt harassed at Caterpillar in July 2002 when a contract employee approached her almost every night for a week and a half and asked her for a date. (Id. ¶ 346.) Tucker complained to a supervisor, and the contract employee, who had previously been warned about similar behavior, was fired as a result of her complaint. (Id.) U.B. Jenkins told Tucker that this was the fifth or sixth time the contract employee had engaged in sexual harassment. (Pl. LR 56.1 Stmt. ¶ 91.)52
According to Tucker, in early 2002, an hourly employee, “Little John,” said, referring to Tucker, “This is a nice little girl I am training. Doesn’t she have a nice ass?” (Def. LR 56.1 Stmt. ¶ 327.) While Tucker did not feel physically threatened by this comment, she did feel demeaned. (Id.) Tucker also claims that Little John and two or three other men stood behind her on one occasion and told her they “like the view from the back.” (Id.) Several months later, Tucker reported Little John’s initial comment to her supervisor, Singh, but she did not report the second comment. (Id. ¶ 328.) Singh did not immediately report Tucker’s complaint but eventually told Bill Miller about it in connection with a complaint about a different incident, described below, in July

52

Defendant objects to Tucker’s testimony of her conversation with U.B. Jenkins on

the grounds that it lacks foundation and constitutes hearsay. (Def. LR 56.1 Resp. ¶ 91.) The court

finds that Tucker has sufficient personal knowledge to testify to her conversation with Jenkins;

further, the statements that U.B. Jenkins made to Tucker are not hearsay as they were made by

Jenkins, the building manager, concerning a matter within the scope of his employment during the

existence of his employment relationship. See FED. R. EVID. 801(d)(2)(D).

70

2002. (Id. ¶ 329.)
Specifically, Tucker claims that she was subject to harassment in July 2002 when, for three days in a row, three hourly employees pointed and laughed at her every time “she had to bring a load back there.” (Def. LR 56.1 Stmt. ¶ 331; Deposition of Roxanne Tucker at 60-61, Ex. EE to Def. LR 56.1 Stmt.) Tucker did not hear what these employees were saying but Jeff Morehead, another employee, told her that they were making sexual statements about wanting to stick their fingers in a hole in Tucker’s jeans. (Def. LR 56.1 Stmt. ¶¶ 331-32; Tucker Dep. at 62-63.) Tucker admits, however, that Morehead has lied to her about several things and that he may have been trying to cause trouble—itself harassing conduct, in Tucker’s view. (Def. LR 56.1 Stmt. ¶ 333; Tucker Dep. at 136-37.) Tucker testified that although she was bothered by the behavior of these male employees and felt uncomfortable, she did not feel threatened. (Def. LR 56.1 Stmt. ¶ 334; Tucker Dep. at 61-62.) Tucker believes that these employees directed their conduct at her because she was a “supplemental employee,” “because she was a woman doing a man’s job,” and because they thought she was working too hard and raising the production expectations. (Def. LR 56.1 Stmt. ¶ 334.) Tucker complained to Singh about the employees who laughed and pointed at her and, although she did not ask Singh to do anything in response, he immediately called the labor relations department and Bill Miller met with Tucker regarding her complaint. (Id. ¶ 335.) Miller told Tucker that Little John’s “nice ass” comment was inappropriate but not sexual harassment. (Pl. LR 56.1 Stmt. ¶ 69.) Singh met with the three hourly employees, however, and counseled them “not to engage in any such behavior going forward.” (Declaration of Tony Singh ¶ 10, Ex. OO to Def. LR 56.1 Stmt.) Singh and the building manager, U.B. Jenkins, told Tucker to inform them of any further problems with these individuals; these three individuals and “Little John” apologized to Tucker and never engaged in such conduct towards her again. (Def. LR 56.1 Stmt. ¶¶ 330, 338.)
According to Tucker, in May 2003, another hourly employee, Chris McCant, would “stalk” her by following her around the buildings and following her to lunch; McCant also told Tucker that
71

she was nice looking and has a “cute little body.” (Def. LR 56.1 Stmt. ¶ 339; Tucker Dep. at 150, 153.) Tucker told another employee that McCant was following her and he reported it to a supervisor, Dan Spivey. (Def. LR 56.1 Stmt. ¶ 340.) Spivey approached Tucker about the incident and suggested to her that McCant may not have realized what he was doing. (Tucker Dep. at 152.) McCant continued to bother Tucker and, after her union steward reported it to Spivey, McCant and Tucker were moved to different lines. McCant did not bother Tucker again. (Def. LR 56.1 Stmt. ¶ 341; Pl. LR 56.1 Resp. ¶ 341; Tucker Dep. at 153-54.)
Tucker also claims that she was subject to sexual harassment at the hands of her supervisor, Jed Brooker. Over a period of several weeks prior to January 6, 2004, Brooker had told Tucker he was “desperate” and asked her if she could find him a girlfriend. (Pl. LR 56.1 Stmt. ¶ 90.) On January 6, 2004, while Tucker was in Brooker’s office, she testified that Brooker put his hands over his pants and moved his penis around in a circular motion. (Def. LR 56.1 Stmt. ¶ 342.) On January 14, 2004, Brooker learned from another employee that Tucker had complained about his behavior. Brooker himself contacted the labor relations department and asked that they conduct an investigation. (Id. ¶ 343.) The labor relations department conducted an investigation that included interviews of Tucker and Brooker and concluded that Brooker had inadvertently “adjusted” himself. (Id. ¶ 344.) Tucker did not have any further problems with Brooker. (Id. ¶ 345.)
Tucker claims to have felt harassed on a variety of other occasions at Caterpillar. These occasions include when Doug Scayman showed Tucker a picture of a deer with a large penis hovering over a man, with a caption that read “How would you like this deer sausage?”. (Id. ¶ 347.) Jeff Morehead, a co-worker, also informed Tucker that Scayman referred to her as a “dizzy bitch.” (Id.) Tucker did not complain to her supervisor or to labor relations about this conduct, but U.B. Jenkins learned about the incident and asked Tucker about it; Tucker informed Jenkins that Scayman had apologized to her. (Id.) In June 2003, Tucker saw another employee, Oscar Chappa, pull a male employee’s pants down; Chappa was immediately fired for this incident. (Id.
72

¶ 349.) A different hourly employee, “Louie,” also indicated to Tucker two or three times that he was interested in her; after Tucker told him she was not interested, he backed off. Tucker never complained to anyone about his conduct. (Id. ¶ 350.) Similarly, Tucker claims that an hourly employee who was married, Dan Nelson, asked her out for breakfast two or three times in March 2004; Tucker did not complain to anyone about Nelson’s conduct. (Id. ¶ 351.) Also in March 2004, Tucker alleges that an hourly employee named Keith was sitting in a chair and pulled Tucker down on top of him and said “can’t you do this with me?” (Id. ¶ 352; Tucker Dep. at 189.) Tucker interpreted Keith to be referring to sex; she told him “no” and Keith later apologized. (Def. LR 56.1 Stmt. ¶ 352.) Tucker did not report this incident to anyone. (Id.)

b. Sexual Harassment Claim

Plaintiff now brings a sexual harassment claim on behalf of Roxanne Tucker. Defendant argues that the harassment Tucker alleges was not sufficiently severe or pervasive to create a hostile work environment and that even if the harassment alleged was actionable, there is no basis for imposing liability on Defendant. (Def. Mem. at 33-34.) Plaintiff argues that Tucker was subject to severe or pervasive harassment and that Defendant’s corrective action was inadequate. (Pl. Response at 22-24.) According to Plaintiff, it is the following harassing events that cumulatively amounted to severe or pervasive harassment:

•

A co-worker told Tucker that she had a nice “ass” and, when he told her that he

“liked the view from the back” when standing behind Tucker with other men (2002);

•

Tucker was told that male employees were making statements about wanting to

stick their fingers in the holes of her jeans (2002);

•

A co-worker told Tucker that she had a “cute little body” (2003);

•

Jed Brooker, Tucker’s supervisor, put his hand on his pants and moved his penis

around in a circular motion after having confided in Tucker that he was desperate

and needed a girlfriend (January 2004);

73

•

A co-worker pulled Tucker onto his lap and said “can’t you do this with me,” which

Tucker interpreted as a request for sex. (March 2004); and

•

A co-worker showed Tucker a lewd picture of a deer with a large penis hovering

over a man that said, “How would you like this deer sausage?” Shortly thereafter

the same co-worker called Tucker a “dizzy bitch.” (Pl. Response at 23.)

In assessing whether these incidents created a hostile work environment, the court notes, first, that Defendant does not specifically argue that Tucker did not find her work environment to be hostile. In fact, however, Plaintiff has offered no evidence that any of the misconduct interfered with Tucker’s work performance. To the contrary, Tucker was performing quite well at work. Tucker herself believes that some of her co-workers’ behavior resulted from the fact that “she was a woman doing a man’s job” and their belief that she was working too hard and raising production expectations. (Def. LR 56.1 Stmt. ¶ 334.)

Turning to the question of whether the work environment was hostile from an objective perspective, the court concludes that the conduct that Tucker complains about was neither frequent nor severe. Viewing the facts in the light most favorable to Plaintiff, Tucker felt harassed on only eight occasions from 2002 to 2004. Eight incidents over a three-year period cannot be characterized as frequent. See, e.g., Patt v. Family Health Sys., Inc., 280 F.3d 749 (7th Cir. 2002) (eight gender-related comments over several years “too isolated and sporadic to constitute severe or pervasive harassment”); Baskerville, 50 F.3d at 430-31 (nine offensive comments over seven months did not amount to actionable harassment). With respect to the severity of the misconduct, the majority of the allegedly harassing incidents involve offensive comments, such as two comments about Tucker’s “ass,” men talking (notably, not directly to Tucker) about sticking their fingers in holes in her jeans, a comment about her “cute little body,” and a reference to Tucker as a “dizzy bitch.” These comments, while inappropriate, are not sexual solicitations, nor are they threatening. Rather, they are “petty vulgarities with the potential to annoy but not to objectively transform the workplace,“ Hostetler, 218 F.3d at 808, and they epitomize the vulgar banter of

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coarse or boorish workers that Title VII does not reach. See Patton, 455 F.3d at 816 (citing Baskerville, 50 F.3d at 430).
Even when combined with the harassing events that involved something more than vulgar banter, the court cannot conclude that Tucker was subject to severe or pervasive harassment. First, it is not clear that Tucker’s supervisor, Jed Brooker, made an obscene gesture when he moved his penis in a circular motion when in Tucker’s presence. Upon hearing of Tucker’s allegation, Brooker requested that the labor relations department investigate the complaint; this investigation resulted in a conclusion that Brooker had inadvertently “adjusted” himself in Tucker’s presence. (Def. LR 56.1 Stmt. ¶ 344.) That Tucker was shown a picture of a deer with a large penis, however tasteless, is not severe misconduct. Of all of the incidents Tucker alleges, the March 2004 incident during which a co-worker pulled Tucker onto his lap and said “can’t you do this with me,” is the most serious. (Id. ¶ 352; Tucker Dep. at 189.) Construing the episode as an uninvited solicitation for sex, its effect on Tucker’s work environment would have been somewhat, if not totally, off-set by the fact that Tucker told her co-worker “no” and he later apologized. (Def. LR 56.1 Stmt. ¶ 352.) Further, Plaintiff does not argue that Tucker felt physically threatened in any way by this isolated incident. The Seventh Circuit has not found harassment to be severe or pervasive where isolated instances of physical contact more intimate than that which occurred here took place in combination with offensive comments and vulgar banter. See Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (no actionable sexual harassment where plaintiff alleged that her superior “asked her for dates, called her a ‘dumb blond,’ put his hand on her shoulder several times, placed ‘I love you’ signs in her work area,” attempted to kiss her in a bar, and may have twice attempted to kiss her in the office). Finally, the court notes that in every instance in which Tucker complained—and one in which she did not complain but the perpetrator himself initiated an investigation—Caterpillar’s manager took prompt corrective action.
Defendant’s motion for summary judgment is granted with respect to Roxanne Tucker’s
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sexual harassment claim.
C. Punitive Damages
Defendant contends that Plaintiff should not be able to pursue punitive damages on behalf of Lambert or any individual whose claim survives summary judgment (Early, Gomez, Irvin, and Smithburg) because the undisputed facts show that it has taken “extraordinary measures to comply with the mandate of Title VII.” (Def. Mem. at 3.) Defendant argues that its good-faith efforts, in the form of maintaining, publicizing, and frequently providing training on policies prohibiting sexual harassment, demonstrate that it takes its harassment policies seriously and “acts decisively to maintain compliance” with these policies when violations are alleged. (Id.) Defendant also contends that when the relevant individuals reported harassment, Caterpillar responded appropriately. (Id. at 38-39.) Plaintiff claims that triable issues exist with regard to whether Defendant made a good-faith effort to comply with Title VII after learning of the class members’ complaints of sexual harassment. (Pl. Response at 27-28.) According to Plaintiff, evidence that Defendant ignored the class members’ complaints of harassment, minimized complaints of harassment, and retaliated against Gomez for her complaint of harassment, supports that Defendant did not make a good-faith effort. as Defendant claims. (Id.)
Title VII authorizes an award of punitive damages when a defendant engages in intentional discrimination “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999) (quoting 42 U.S.C. § 1981a(b)(1)). In Kolstad, the Supreme Court set forth a three-part framework for evaluating when this standard is met. See Bruso v. United Airlines, Inc., 239 F.3d 848, 857-58 (7th Cir. 2001) (citing Kolstad, 527 U.S. 526). First, punitive damages are only available when the employer acted with the requisite mental state. The plaintiff must show either that the employer acted “with knowledge that its actions may have violated federal law,” or with reckless disregard, “by showing that the defendant's employees lied, either to the plaintiff or to the jury, in order to cover up their
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discriminatory actions.” Kolstad, 527 U.S. at 535; Bruso, 239 F.3d at 858. Next, the plaintiff must establish a basis for holding the defendant liable; the relevant inquiry is whether the “employees who discriminated against [the plaintiff] are managerial agents acting within the scope of their employment” and is controlled by the principles of federal agency law. Kolstad, 527 U.S. at 545; Bruso, 239 F.3d. at 858. Finally, if the plaintiff’s evidence meets these two tests, the employer may avoid vicarious liability “for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s good-faith efforts to comply with Title VII.” Kolstad, 527 U.S. at 545 (internal quotations and citation omitted).
Neither party has explicitly addressed this framework. While Defendant recites the statutory standard for punitive damage liability in its initial memorandum in support of summary judgment, the only argument that Defendant develops in that memorandum is that its good-faith efforts insulate it from awards of punitive damages. (See Def. Mem. at 35-40.)53 As a result, Plaintiff addresses only this point in its response. (Pl. Response at 27-30.) Defendant does argue in its reply brief that there is no evidence to establish that Defendant acted with the requisite “evil intent” for punitive damage liability, (Def. Reply at 3-5), but, because the Defendant raises this specific argument for the first time in its reply, the court declines to consider it. See United States v. Feinberg, 89 F.3d 333, 34041 (7th Cir. 1996).
In any case, the relevant mental state requirement—that the alleged wrongdoer “acted with knowledge that its actions may have violated federal law”—does not require the employer to be

53

Defendant includes one section in its memorandum titled “Caterpillar Enforces Its

Policies And Did Not Act With Malice or Reckless Indifference To Its Employees’ Rights.” (Def.

Mem. at 38.) This section details Defendant’s response to the various instances of harassment

alleged here—information relevant to the analysis of Defendant’s good-faith efforts to comply with

Title VII, but not relevant to the analysis of Defendant’s mental state. As the Court explained, the

mental state analysis “pertain[s] to the employer's knowledge that it may be acting in violation of

federal law . . . .” Kolstad, 527 U.S. at 535; see also Bruso, 239 F.3d at 859 (when evaluating

defendant’s mental state, discussing whether employees who made the decision to demote plaintiff

were familiar with Title VII and whether defendant’s anti-discrimination policy intended to implement

Title VII).

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aware that it is engaging in discrimination. Bruso, 239 F.3d at 857-58. The employer need only act “‘in the face of a perceived risk that its actions will violate federal law,’” which is satisfied if the relevant individuals were aware or were familiar with anti-discrimination laws and the employer’s policies for implementing such laws. Id. (quoting Kolstad, 527 U.S. at 536). That standard is met here: There is ample evidence that managerial employees were aware of the risk that they might violate federal law, as reflected in Defendant’s repeated and substantial efforts to train all employees on and publicize its harassment policies. See supra Background Sections 1 & 2. The court is satisfied that the relevant individuals—those individuals alleged to have participated in sex discrimination—in Defendant’s organization knew of or were familiar with the antidiscrimination laws and Defendant’s policies for implementing them. See, e.g., Hertzberg v. SRAM Corp., 261 F.3d 651, 662-63 (7th Cir. 2001) (evidence was sufficient for a jury to find that two of defendant’s employees “knew of . . . the antidiscrimination laws and the employer’s policies for implementing those laws,” where each of the employees testified to their knowledge of the employer’s sexual harassment policy and made statements characterizing certain harassing behaviors as “inappropriate” or “offensive”); cf. Bruso, 239 F.3d at 859-60 (based on evidence that “the major players in the decision to demote [plaintiff] were familiar with the antidiscrimination principles of Title VII and [defendant’s] zerotolerance-for-discrimination policy . . . . a reasonable jury could have concluded that [the major players] were familiar with Title VII and must have been aware of the possibility that demoting [plaintiff] after he had come forward with allegations of harassment would violate Title VII”).
Nor is there any genuine dispute about whether that liability may be imputed to Defendant based on principles of agency law. That leaves the third prong of the test, the only one Defendant addressed in its opening brief: whether the employment decisions made by Defendant’s agents were contrary to Defendant’s good-faith efforts to comply with Title VII. Plaintiff is correct that, although the existence of a harassment policy is relevant to evaluating Defendant’s good faith, it is not alone sufficient to protect Defendant from an award of punitive damages. Bruso, 239 U.S. at 858.
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Defendant must not only develop anti-discrimination policies, but must also show the “active enforcement of its mandate.” See Romano v. U-Haul Int’l, 233 F.3d 655, 670 (1st Cir. 2000) (cited in Bruso, 239 F.3d at 859 n.7); Cadena v. Pacesetter Corp., 224 F.3d 1203, 1210 (10th Cir. 2000) (cited in Bruso, 239 F.3d at 859 n.7) (“[E]ven if an employer-defendant adduces evidence showing it maintains on paper a strong non-discrimination policy and makes good faith efforts to educate its employees about that policy and Title VII, a plaintiff may still recover punitive damages if she demonstrates the employer failed to adequately address Title VII violations of which it was aware.”) Judge Castillo’s analysis in Fuller v. Caterpillar, 124 F. Supp. 2d 610, 618 (N.D. Ill. 2000), is instructive. In Fuller, also a sexual harassment case brought under Title VII, the court concluded that an award of punitive damages was not appropriate in light of Caterpillar’s efforts to promote its harassment policy and evidence that Caterpillar “promptly took reasonable steps to rectify” the harassment at issue in that case. Id. at 618. This court, too, considers whether Defendant enforced its harassment policy effectively in Lambert’s case and in the cases of the other women whose claims survive summary judgment—Early, Gomez, Irvin, and Smithburg.
As a preliminary matter, the court denies Defendant’s request for summary judgment as to the availability of punitive damages for Lambert. Though Defendant stated in its opening brief that Plaintiff should be precluded from pursuing punitive damages on behalf of Lambert, (Def. Mem. at 3), Defendant offered no evidence about Lambert’s complaints of sexual harassment or its response.
The court also denies Defendant’s request for summary judgment as to the availability of punitive damages for Early, Gomez, and Irvin. Early’s sexual harassment claim arises from the conduct of a security guard. While Defendant focuses on the fact that Early was never harassed after she lodged a complaint, at this state it is undisputed that the individual in Defendant’s labor relations department to whom Early complained did nothing in response. Evidence that an employer refused to remedy or ignored complaints of harassment can establish an employer’s lack of a good-
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faith effort to comply with Title VII. See Bruso, 239 F.3d at 860-61 (reasonable jury could conclude that defendant did not engage in good-faith effort to comply with Title VII where evidence suggested that defendant refused to remedy plaintiff’s harassment despite knowing about it). As explained earlier, questions of fact remain as to how Defendant handled both Gomez and Irvin’s complaints of harassment, as well. See supra Discussion Sections B.2.b. & B.3.b. Without a complete understanding of Defendant’s actions in response to Gomez and Irvin’s complaints, it would be premature for the court to conclude whether Defendant’s responses demonstrated a good-faith effort.
With respect to Smithburg, however, the record does establish that Defendant made a goodfaith effort to implement its sexual harassment policy in response to Smithburg’s complaints. Plaintiff emphasizes Defendant’s failure to take any disciplinary action from the date of Smithburg’s initial complaint until August 2005. (Pl. Response at 30.) The evidence shows, however, that though its response did not take the form of disciplinary action, Defendant did respond effectively to each of Smithburg’s complaints. When Smithburg first complained to her supervisor of harassment by Morrissette in the summer of 2001, he instructed Morrissette to cease the allegedly harassing behavior, which proved effective for some time. (Def. LR 56.1 Stmt. ¶ 280; Pl. LR 56.1 Stmt. ¶ 63; Hollenback-Smithburg Dep. at 96.) After Smithburg’s second complaint in 2002, Defendant initiated an investigation which, though ultimately inconclusive, was unquestionably thorough. (Def. LR 56.1 Stmt. ¶ 295.) Finally, when additional inappropriate conduct was again brought to Defendant’s attention in 2005, Defendant initiated an investigation that led to Morrissette’s termination. (Id. ¶¶ 311-13.) Cf. Hertzberg, 261 F.3d at 663-64 (employer did not act in good faith in responding to complaints of harassment in part because employee was told that she was being “too emotional” and complaints were “shrug[ged] off” by those in chain of command). The undisputed facts do not support that Defendant turned a blind eye to Smithburg’s complaints of harassment; rather, they show that Defendant took appropriate, effective action in response to each of Smithburg’s
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complaints. The court concludes that Smithburg’s sexual harassment claim, if successful, will not support an award of punitive damages.
CONCLUSION For the reasons explained above, the court grants Defendant’s motion for summary judgment (111) as to Plaintiff’s retaliation claim on behalf of Diana Gomez, Plaintiff’s sexual harassment claims on behalf of Lillie Johnson and Roxanne Tucker, and Plaintiff’s claim for punitive damages on behalf of Wendy Hollenback-Smithburg. In all other respects, Defendant’s motion for summary judgment is denied.
ENTER:

Dated: August 9, 2007

_________________________________________ REBECCA R. PALLMEYER United States District Judge

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, v. CATERPILLAR, INC.,
Defendant.

) ) ) ) ) ) No. 03 C 5636 ) ) Judge Rebecca R. Pallmeyer ) )

MEMORANDUM OPINION AND ORDER

On February 2, 2002, Karon Lambert1 filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC” or “Plaintiff”) against her employer, Caterpillar Inc.

(“Caterpillar” or “Defendant”). This action arises out of the EEOC's subsequent investigation into

sexual harassment allegedly occurring at Caterpillar’s Aurora, Illinois, facility, where Lambert

worked. In addition to Lambert’s claims for sexual harassment and retaliation, the EEOC brought

sexual harassment claims against Caterpillar on behalf of five other current employees and one

former employee. After the court granted Defendant’s motion as to some of those claims, the case

proceeded to trial on sexual harassment claims brought on behalf of Sandy Irvin and Virginia Early,

and on Lambert’s claims for sexual harassment and retaliatory discharge. The court conducted a

five-day bench trial and states here its findings of fact and conclusions of law.

1

Karon Lambert got married in the course of this litigation and by the time of trial had

taken the name Karon Hevelka. Following the parties’ lead, the court refers to her as Karon

Lambert to avoid confusion.

BACKGROUND2 Defendant’s Aurora Facility and Workforce
All of the events giving rise to this action took place at Caterpillar’s facility in Aurora, Illinois, which is devoted primarily to manufacturing and assembling large earth-moving equipment. See EEOC v. Caterpillar, Inc., 503 F. Supp. 2d 995, 999 (N.D. Ill. 2007) (Pallmeyer, J.) The Aurora facility is composed of four main buildings, occupies almost 400 acres, and operates 24 hours a day, five days a week, with three shifts per day. In general, the first shift runs from 7:30 a.m. to 3:30 p.m.; the second shift runs from 3:30 p.m. to 11:30 p.m.; and the third shift runs from 11:30 p.m. to 7:30 a.m. SF ¶ 10. The assembly lines normally run on the first and second shift only. Id. All other departments operate on all three shifts to supply and support the assembly operations. Id.
Approximately one-third of the employees at the Aurora facility are salaried and work in clerical, technical, professional, or managerial positions. Id. ¶ 9. The remaining employees are hourly workers who are engaged in various aspects of the manufacturing process. Caterpillar, 503 F. Supp. 2d at 999. These hourly employees are represented by the United Auto Workers, Local 145 (the “union”) and, under the terms of the collective bargaining agreement, are classified either as full-time or “supplemental” employees. Id. Full-time workers are regular, non-temporary employees covered by the agreement, including a progressive discipline policy and assurances that they can only be fired for just cause. Id. Supplemental employees are hired to work on a temporary, though sometimes indefinite, basis. Id. Unlike full-time employees, supplemental employees can be fired at any time for any reason, have limited grievance rights under the labor

2

The following findings of fact are made pursuant to Federal Rule of Civil Procedure

52(a), based upon the stipulated facts and the evidence presented at trial. The parties’ Stipulations,

Schedule A to the Final Pretrial Order, are cited here as “SF ¶ __.” The court cites the trial

transcript as “Tr. __” and the parties’ exhibits as “Pl.’s Ex. ___” and Def.’s Ex. ___.”

2

agreement, and are not protected by provisions of the labor agreement that require Caterpillar to engage in progressive discipline. Id. Defendant’s Sexual Harassment Policies and Training
Because it is relevant to Caterpillar's affirmative defense, and to Plaintiff's claims for punitive damages, the parties have devoted considerable attention to Caterpillar's practices and policies concerning workplace harassment. Beginning no later than 1996, Caterpillar maintained and published a policy that prohibited sexual harassment. (SF ¶ 43.) The details of the 1996 policy do not appear in the parties’ stipulations; the policy in place between 1998 and 2000, however, provided that an employee who believes that he or she has been sexually harassed should report the conduct to one of four people: (1) his or her supervisor, (2) his or her manager, (3) the labor relations and personnel service manager, or (4) the corporate EEO coordinator. (Id. ¶ 44.) Since 2000, Caterpillar has maintained and published a “prohibited harassment” policy that expanded upon its earlier policy to prohibit all forms of harassment, including sexual harassment. (Id. ¶ 45.) Similarly to the earlier policies, the policy issued in 2004 instructs workers who believe they have been harassed to notify either the area supervisor, the department manager, the human resources manager, or the corporate EEO manager. (Id. ¶ 46.) In addition to those individuals, the 2005 and 2006 policies provide that employees may report harassment to local human resources staff, as well. (Id. ¶ 48.) The policies also explain that an employee who believes he or she has been harassed may file a charge with the Illinois Department of Human Rights; the 2005 and 2006 policies note employees’ right to file a charge with the EEOC, as well. (Id. ¶ 49.) And Caterpillar's policies prohibit retaliation against an employee who reports or participates in an investigation of sexual harassment. (Id. ¶ 50.)
Since at least 1996, Caterpillar had established procedures for processing employee complaints regarding equal employment matters. (Id. ¶ 51.) Also since 1996, Caterpillar has maintained an equal employment opportunity (“EEO”) policy announcing that the Aurora facility is
3

to be a harassment-free work environment. (Id. ¶ 52.) Printed copies of the harassment policies, as well as government-required anti-discrimination posters, have been posted in at least one spot of high visibility in every major building at the Aurora facility since 1996; copies have also been posted in locked glass display cases at major facility entrances, at least one of which all employees pass when they walk into work. (Id. ¶¶ 54-56.)
In addition to the posters, Caterpillar communicated with its employees by way of printed publications. In 1996, Caterpillar published a booklet for employees called What You Should Know About Sexual Harassment in the Workplace, which sets forth Caterpillar's sexual harassment policy and provides guidance to employees on how to recognize and handle sexual harassment and the consequences of such harassment. (Id. ¶ 57.) This booklet, which was distributed to each new employee during his or her orientation from 1996 to 2000, provides that when an employee discloses information concerning an incident of harassment, supervisors are to immediately report the incident to their facility EEO coordinator or local human resources manager. (Id. ¶¶ 57-58, 64.) Also in 1996, Caterpillar published another booklet for employees, Working at Caterpillar, which recites Caterpillar’s EEO policy and warns employees that failure to comply with the company's policies and procedures, including the sexual harassment policy, may lead to disciplinary action. (Id. ¶ 59.) A revised booklet, What You Should Know About Caterpillar's Prohibited Harassment Policy, was distributed to employees in 2001; this booklet, like the earlier versions, discusses Caterpillar's policies against sexual harassment and retaliation in depth. (Id. ¶¶ 60-61.) Since 2001, this booklet has been distributed to each new employee during orientation. (Id. ¶ 64.) Caterpillar also distributes its Code of Worldwide Business Conduct, which affirms that the company complies with laws prohibiting discrimination, that Caterpillar promotes an environment free of intimidation and harassment, and that its employees have a responsibility to report harassment and will not be subject to retaliation for doing so. (Id. ¶62.)
4

Caterpillar has conducted a number of training sessions for its employees that included
training on sexual harassment. Among the training sessions that Caterpillar has conducted at its
Aurora facility are the following:
• Since 1996, all new employees at the Aurora facility attend an orientation program on their first day on the job. (Id. ¶ 63.) Caterpillar's harassment policies are reviewed with the attendees and the new employees are informed that these policies are posted throughout the facility. (Id. ¶ 66.)
• Since 1996, employees have been required to attend another week-long training program three months into their employment. A portion of that training program is devoted to harassment training. (Id. ¶ 67.)
• Since 1996, the facility has conducted an orientation for newly-hired or promoted supervisors, at which Caterpillar reviews its harassment policies and explains to the supervisors their role with respect to complaints of harassment. (Id. ¶¶ 68-70.)
• In March 1996, all salaried and management employees at the Aurora facility were required to attend a diversity training called “Synergy From Others,” which included a discussion on behaviors that can give rise to complaints of sexual harassment. (Id. ¶ 71.) This training was repeated for hourly employees in March of 1997. (Id. ¶ 74.)
• In November 1996, all of the supervisory and management employees at the Aurora facility were required to attend a two-hour sexual harassment training course titled “Maintaining A Harassment-Free Work Environment” and were provided with the What You Should Know About Sexual Harassment in the Workplace booklet. (Id. ¶ 72.)
• In January 1998, all salaried and management employees at the Aurora facility were required to attend an eight-hour diversity training, which included a segment on sexual harassment. (Id. ¶ 75.)
• Bill Miller, the labor relations representative, conducted sexual harassment training for managers in certain buildings at the Aurora facility in October 1999. (Id. ¶ 76.)
• In early 2000, hourly employees at the Aurora facility were required to attend a training course called “Diversity Diner,” concerning the need to be sensitive to diversity, including gender differences, in the workplace. (Id. ¶ 77.)
• In March 2000, supervisors at the Aurora facility were required to attend a training course titled “What the Supervisor Needs to Know About Sexual Harassment,” which covered Caterpillar's policies and procedures, what behaviors constitute sexual harassment, and how supervisors should respond to complaints of harassment. (Id. ¶ 77.)
5

• In 2001, management employees at the Aurora facility took part in a training program called “Valuing People” which reviewed diversity issues, including gender differences, in the workplace. (Id. ¶ 79.)

• In 2001, Caterpillar conducted an all-employee meeting at the Aurora facility, at which attendees viewed a video on workplace harassment and discussed Caterpillar's policy prohibiting harassment. (Id. ¶ 80.)

• In 2003-2004, Caterpillar conducted mandatory, facility-wide training on its prohibited harassment policy and policy of non-retaliation. (Id. ¶ 81.) During the course, Caterpillar reissued its What You Should Know About Sexual Harassment in the Workplace booklet. (Id.)

I.

Karon Lambert’s Claims

A. Background

Karon Lambert worked as an industrial hygiene and safety supervisor in Building B of

Caterpillar’s Aurora facility from August 31, 2001 to January 3, 2002, when Caterpillar terminated

her employment. (SF ¶¶ 11-12, 16.) Among her duties were ensuring that the plant complied with

Occupational Safety and Health Act (“OSHA”) standards, ensuring that the plant adhered to its own

safety guidelines, and training managers on plant safety requirements. (Tr. 206:5-16.) Lambert

alleges that her direct supervisor, Robert Garcia, engaged in repeated acts of sexual harassment

throughout her four-month employment and then recommended she be terminated when she

rejected his advances. Garcia was employed as Building B’s safety and security manager at the

time of the alleged harassment until he retired from Caterpillar in 2003.

B. Evidence of Sexual Harassment

Lambert testified to a pattern of harassment that began, she asserts, on her the very first

day of her employment when, Garcia “brush[ed] up” against her breast with his arm and the back

of his hand several times while giving her a tour of the facility. (Tr. 35:15-23.) Lambert testified that

the second time Garcia did this, he told her that he “liked the way [her breasts] responded to his

touch.” (Tr. 36:6-7.) Lambert also stated that during this plant tour, Garcia shared what she

considered sexually inappropriate information about other employees, such as which coworkers

6

were rumored to be “sleeping” together. According to Lambert, after introducing her to another male employee, Garcia warned Lambert that he is “a lady’s man” who “would sleep with [Lambert] if he had the chance.” (Tr. 37:10-15.)
Lambert claims that during her first week at Caterpillar, Garcia said he was interested in dating her, and she responded by telling him that their relationship would only ever be strictly professional. (Tr. 49:1-9.) According to Lambert, Garcia told her that he would be jealous if she dated anyone else, a statement he allegedly made several times in the ensuing weeks. (Tr. 49:1015, 49:16-50:1.) Lambert testified that shortly after she refused to date Garcia, he told her that he would like to “bend her over the smoking rail,” the factory’s designated smoking area, and that he wanted to “fuck” her. (Tr. 50:2-10.) Also during her first week at Caterpillar, Garcia allegedly told Lambert that Caterpillar did not permit employees to wear rings in the plant, due to the risk of their getting caught in the machinery; he added, “You are going to like that because no one is going to have to know that you are married." (Tr. 53:14-17.) Around this time, Garcia purportedly told Lambert that he “liked the way that [her breasts] would sometimes stick out when [she] would wear a certain sweater,” identifying the sweater he liked. (Tr. 45:19-25.) After introducing Lambert to other women at the plant “that were attracted to him,” Garcia also allegedly described their breasts to Lambert and commented on the size of Lambert’s breasts. (Tr. 46:6-2.)
Lambert claims Garcia’s offensive behavior continued throughout employment at Caterpillar. During the first two to three weeks at the plant, Lambert testified that Garcia would touch her breasts “daily”; she claims he continued to do so, albeit less frequently, thereafter. (Tr. 37:15-38:6.) According to Lambert, Garcia did this in ways that would appear inadvertent or unintentional. (Tr. 39:9-40:1.) For example, Garcia’s arm would graze her breast when he pointed things out in the plant, or, when he bent over to get a cigarette from where he stored them in his sock, his shoulder would bump Lambert’s breast. (Tr. 40:20-22.) Sometimes, Lambert testified, he blew smoke in the direction of her chest. (Tr. 39: 11-16.) When he and Lambert were at the
7

“smoking rail,” Lambert stated that Garcia would lean on the railing in such a way that when he moved or turned to the side he would brush against her breast. (Tr. 40:14-17.)
Lambert testified that “almost every time he touched [her breasts],” Garcia would comment about how he “liked large breasts,” that he “liked the way that they responded,” and that he “would be jealous if they responded to anyone else.” (Tr. 43:5-10.) Lambert stated he would sometimes ask after touching her, “Well, is it as good for you as it was for me?” (Tr. 45:3-6.) Lambert recalled an incident when, after seeing another female employee with a lollipop in her mouth, Garcia told Lambert that he would like to suck her breast. (Tr. 54:22-55:1.) On another occasion, she claims, Garcia was smoking a cigarette and told Lambert that he “would much rather suck [her] breast than a cigarette” and that he “wanted to fuck [her] breasts.” (Tr. 43:25-44:2, 44:6.) Lambert claims she responded by telling Garcia to leave her alone and that “it would never happen.” (Tr. 44:11-12.)
Lambert testified that Garcia would frequently insist on opening the door for her, leaving just enough room for her to pass, and then brushing her breast with his hand as she walked through the doorway. (Tr. 39:11-40:2.) Once, she said, Garcia “grabbed [her] butt” when he opened the door for her. (Tr. 37:21-23.) As members of the plant’s safety audit committee (“SAC”), Garcia and Lambert would also periodically tour the facility as part of a “safety audit.” (Tr. 52:24-3.) On these tours, Lambert testified that Garcia told her “a couple of times” that she had a “sexy” walk and that he “got turned on by it.” (Tr. 53:4-9.)
When Lambert first began work, she testified, Garcia and Jenny Logel, another plant employee, instructed her to report each morning to Garcia’s office, which was at the opposite end of the facility from her own. (Tr. 34:21-35:3.) In mid-September, however, she stopped reporting to Garcia’s office after an incident following a birthday celebration at the plant for Garcia. (Tr. 41:914.) According to Lambert, some plant employees brought a cake to Garcia’s office and sang “Happy Birthday” to Garcia, and Garcia’s secretary gave him a hug. (Tr. 41:19.) After the song and cake, Garcia waited for the other employees to leave and then closed the door after them, leaving
8

himself along with Lambert. Lambert testified that he told her “he now wanted the hug that he really wanted,” embraced her tightly and, as Lambert recounted, began “nuzzling in my neck,” “rubbing down my butt,” and “pulling me into his groin.” (Tr. 41:23-25.) Lambert testified that Garcia “told me if I said anything to anyone, that he was here long before me, he would be here long after me, and that there was a zero tolerance. And I would be the one to lose my job.” (Tr. 42:7-10.) Lambert claims she “was trying to grab at the door” throughout this encounter and that Garcia finally released her because she “was pulling at the doorknob.” (Tr. 42:11-16.)
To Lambert’s knowledge, no one overheard any of Garcia’s inappropriate comments or witnessed any of his behavior toward her, with the exception of one occasion when Garcia grabbed her backside as Lambert walked through a doorway. At trial, Dean Morrissette, the tool room supervisor during Lambert’s employment, testified that he once saw Garcia open the door for Lambert and “pat[] her on the rear end as she entered the door ahead of him.” (Tr. 174:7-11.) Morrissette acknowledged, however, that he was standing somewhere between 30 and 100 feet away at the time and could not say for certain that Garcia actually touched Lambert, though it “appeared that he did.” (Tr. 180:11-25.) Morrissette explained that he did not report the incident to his own supervisor because he could not tell whether Garcia’s behavior was “unwanted or whether it was acceptable to her.” (Tr. 174:25-175:9, 179:9-12.) Morrissette was fired from Caterpillar in 2005 for sexual harassment. (Tr. 175:23-25.)
Lambert testified in some detail about Garcia’s inappropriate behavior toward certain other women in the Caterpillar plant. Notably, that testimony was contradicted by the women themselves. First, Lambert testified that Garcia frequently referred to women on the facility’s safety committee as his “harem.” (Tr. 52:12-21.) Gene Hevelka, Lambert’s husband, also claimed Jenny Logel told him that Garcia referred to certain women on the committee as his “harem.” (Tr. 463:22-464:8.) Jenny Logel, Vicki Pittenger, and Jessica Hardy, the members of this so-called “harem,” however, all denied ever hearing Garcia refer to them as such. (Tr. 435:12-13, 452:13-14.) Hardy testified
9

that she, not Garcia, had once referred herself, Pittenger, and Logel as “Bob’s harem” in Garcia’s presence, and Garcia afterward reprimanded her for using inappropriate language. (Tr. 452:15453:4.)
Lambert also claimed she saw Garcia inappropriately touch other women at the Caterpillar plant. Specifically, Lambert recalled seeing Garcia rub a Peppermint Pattie across Logel’s breasts and afterwards saying, “It’s going to taste better now.” (Tr. 53:18-54:5.) In her own earlier statement to the EEOC, however, Lambert stated that she originally heard this story from Logel herself. (Lambert Post-Termination Notes, Def. Ex. 12.) Gene Hevelka also testified that Logel told him on at least two occasions that Garcia frequently rubbed candy across her chest. (Tr. 464:9465:6.) Garcia and Logel both denied this or any similar event ever took place. (Tr. 198, 406-407.)
Sometime in late August or early September, Lambert claims she approached Pittenger, Logel, and Hardy about Garcia’s behavior. According to Lambert, she asked them whether he “had ever rubbed and brushed up or grabbed their breasts,” and Pittenger responded, “Yes, that that was Bob,” and, “He just gets his daily feels.” (Tr. 55:22-56:2.) Hardy reportedly stated that he brushed up against her daily, and Logel added that “[i]f anybody were to complaint about it, they lost their job.” (Tr. 56:3:-9.) Lambert testified that this conversation made her feel “hopeless” and “threatened” because “it seem[ed] like I was the only one that was complaining and didn’t like it.” (Tr. 56:10-20.) At trial, Pittenger, Logel, and Hardy all denied telling Lambert that Garcia had touched them or anyone else inappropriately, and each independently testified that they had never experienced any kind of inappropriate behavior from Garcia. (Tr. 407-08, 432-33, 434-35, 450-54.) All three women also denied telling Lambert that retaliation was an expected consequence of reporting harassment by Garcia. (Tr. 408, 436, 450.) Pittenger specifically denied making the comment that Garcia “gets his daily feels.” (Tr. 433:20-21.)
During the week of October 15, 2001, Garcia, Hardy, Pittenger, and Lambert attended an overnight safety conference at a hotel in Peoria, Illinois. (Tr. 56:21-57:2, 116:4.) At dinner in the
10

hotel restaurant, Lambert testified, Garcia directed her to the inside of the booth and sat down beside her, across from Hardy and Pittenger. (Tr. 58:11-19.) Throughout dinner, Lambert claims, Garcia rubbed his hand up and down her thigh and buttocks underneath the table. (Tr. 58:24-25, 59:18-29.) At one point, according to Lambert, Garcia whispered to Lambert that he liked the way she held her fork and told her he wanted to “fork” her. (Tr. 59:1-6.) Lambert’s initial written account of that evening, in an e-mail to the EEOC dated April 30, 2003, told a milder story: "During dinner, seated in a booth,” Lambert wrote, “Bob sat next to me and would often press against or lean into me, which made me feel uncomfortable." (Tr. 116:20-23, Def. Ex. 13.) Lambert also wrote, “Bob made comments that he liked the way that I ate and it was nice to see that I had good table manners.”
Later that evening, according to Lambert, she told Hardy that she “didn’t like the way Bob was acting.” (Tr. 60:5-6.) In response, Hardy allegedly told Lambert that on another work-related trip Garcia had hugged her and tried to unzip her jumper. (Tr. 59:7-10.) According to Lambert, Hardy told her she did not report the incident to anybody at Caterpillar because she did not feel that she could. (Tr. 60:12-14.) At trial, Hardy denied that Garcia ever attempted to unzip her clothing. (Tr. 446:25-3.) Hardy recalls that during Lambert’s first week at Caterpillar, Hardy told Lambert over dinner that her supervisor at a different facility had attempted to unzip her pantsuit after walking her back to her hotel room during a conference. (Tr. 446:19-24.) Hardy testified that she reported that incident (not involving Garcia) to another supervisor at Caterpillar, and when she came to work the following day, the supervisor who had engaged in offensive conduct had vacated his office, and she never worked with him again. (Tr. 446:8-15.)
According to Pittenger and Hardy’s recollections of the dinner in Peoria, far from voicing any discomfort, Lambert seemed “jovial” and was “laughing and joking around.” (Tr. 431:10-11, 445:24.) Both women testified that Lambert said she “loved her job” and did not appear upset or complain about Garcia’s behavior. (Tr. 444:22- 445:7, 432:1-7.) Pittenger testified that on a trip
11

to the women’s restroom, she heard Lambert tell a stranger that she was having a “great time” and that she liked her job. (Tr. 432:2-7.) Neither woman saw Garcia acting inappropriately toward Lambert that evening. (Tr. 444:19-21, 431:3-8.)
Hardy, an ergonomics coordinator who worked under Garcia’s supervision during Lambert’s employment, did complain on several occasions about inappropriate behavior at the Aurora facility. Once, Hardy testified, she and a prospective female intern were touring the plant and heard “wolf whistling” from the factory floor. (Tr. 447:10-17.) Hardy took the prospective intern to her office and immediately reported the incident to her supervisor, who advised her to speak to Bill Miller, the facility’s labor relations manager. (Tr. 447:18-24.) Miller asked her for details about the incident and, according to Hardy, promised to address the entire group on the factory floor about the disciplinary consequences, including discharge, of that kind of behavior.3 (Tr. 448:9-12, 378:7-11.) Hardy also testified that she complained to both Garcia and Miller about the presence of offensive photographs in the factory on two occasions. (Tr. 449:13-14.) In the first instance, Miller “immediately removed” the offending photograph when he could not identify its owner. (Tr. 449:1314.) In the second, he deemed the pictures “not inappropriate” and allowed the employee to keep them. (Tr. 377:22-378:6.) Finally, Hardy complained to Garcia when another employee told her “a very offensive joke.” Garcia spoke to the employee and instructed him to apologize to Hardy. (Tr. 449:15-24.)
Garcia himself strenuously denied every one of Lambert’s allegations. He testified that he never intentionally touched Lambert’s breasts or backside, never stated that he was physically attracted to or wished to date Lambert, never threatened Lambert or told her he was jealous, never commented on Lambert’s appearance, clothing, or anatomy in a sexual way, never requested a hug from Lambert, never blew smoke in the direction of her chest, and never told Lambert that she

3

It is unclear from the record, however, whether Miller in fact took action in response

to Hardy’s complaint about the whistling.

12

would be pleased by the factory’s “no-ring” policy. (Tr. 193-198.) Further, Garcia denied ever discussing the sex lives of other employees, engaging in inappropriate physical contact with female employees, or making comments to Lambert about other female employees in a sexual way. (Tr. 194:6-11.)
C. Lambert’s Response to the Alleged Harassment Lambert testified that Garcia’s behavior during her time as a Caterpillar employee made her feel “violated,” “demoralized,” “threatened,” “afraid,” “humiliated,” and “worthless.” (Tr. 60:19-61:1.) In response to Garcia’s conduct, she said, she began wearing minimizer bras and layering her clothing to draw attention away from her breasts. (Tr. 61:2-21.) Lambert testified that she took steps to avoid unwanted contact with Garcia. At first, she made general efforts to avoid physical contact when Garcia “would walk right up beside [her].” (Tr. 41:6-8.) She also told him that she didn’t like it when he blew smoke at her breasts, to which Garcia allegedly replied that Lambert “better get used to it.” (Tr. 48:11-15.) Following the incident on Garcia’s birthday, when he allegedly groped and threatened Lambert, she testified that she stopped reporting to his office in the morning. (Tr. 41:9-14.) Lambert admitted, however, that she never complained to any supervisor or manager or to anyone in Caterpillar’s human resources or labor relations departments regarding Garcia’s behavior. (Tr. 96-98.) In December 2001, Lambert did speak to Pete Moore, a union representative, about filing a complaint against Garcia regarding their working relationship, but did not mention sexual harassment as the basis for the complaint. (Tr. 80:13-81:6, 98:12-99:7, 302:17303:8.) In her testimony, Lambert attributed her reluctance to complain about the harassment to a combination of fear of losing her job and a lack of training in Caterpillar’s sexual harassment policies. (Tr. 80-83.) Lambert claims that after she spoke with Moore, Garcia came to her office and threatened her, warning her not to speak to anyone about her job, her position, or “what was going on” because “no one would believe [her]” and that “he would be there long after [her].” (Tr.
13

82:5-15.) Lambert did not report this threat to anyone else at Caterpillar because, she testified, she believed she would lose her job. (Tr. 82:16-83:1.)
Lambert denies Caterpillar ever provided her with sexual harassment training or any handbooks on Caterpillar’s sexual harassment policies. (Tr. 32:22-3, 33:4-18.) She claims she never attended a scheduled orientation session because Garcia insisted she attend safety meetings instead and assured her “he would give [Lambert] all the training [she] needed.” (Tr. 38:18-29:3.) She did, however, recognize that Caterpillar had a sexual harassment policy and that human resources staff could have furnished her with a copy of it at her request. (Tr. 101:12-25.) Lambert admitted she never sought out a copy of the policy. (Tr. 102.) She also admitted she had received sexual harassment training from previous employers and therefore knew from past experience that Garcia’s alleged behavior would be considered harassing and illegal. (Tr. 101:1-10.)
Alan Wolff, the employment supervisor charged with training new employees in the firm’s sexual harassment policies at the time, testified that he recalled that Lambert did attend his orientation class on her first day at the Aurora facility, along with four or five other new hires. (Tr. 277:21-279:22, 281:4-9, 284:7-10.) Wolff could not recall the names of any of the other attendees and did not keep a written record of persons who attended or received orientation materials. (Tr. 282:5-22.) He also conceded that he had trained over 100 employees in his position as employment supervisor and could not recall the names of individual employees or when he had trained them. (Tr. 282:13-14.)
D. Events Leading Up to Lambert’s Termination In late September 2001, Lambert attended a retirement party for two Caterpillar employees at a local bar. The party was not sponsored by Caterpillar. (Tr. 238:22-24.) Among those in attendance were Jenny Logel, Vicki Pettinger, Pete Moore, a union committeeman, and Gene Hevelka, a member of the union’s safety committee and Lambert’s future husband. (Tr. 70:1971:14, 208:13-17.) Garcia was not present. At this party, Logel, then an ergonomics intern at
14

Caterpillar, witnessed Lambert “kissing a couple guys and dancing provocatively with Gene [Hevelka].” On October 1, 2001, Logel reported Lambert’s behavior to Garcia. (Tr. 405:10-17.) Garcia noted the substance of his conversation with Logel in a file titled “Progress Notes Karon Lambert,” which contains notes beginning on October 1, 2001, the date he spoke to Logel, and ending on December 14, 2001. (Tr. 214:24-215:25, Def. Ex. 2.) Garcia testified that he started the log because he believed the “situation was serious enough to document just in case my boss would come to me and said (sic), ‘hey, what’s going on?’” (Tr. 215:13-17.) Garcia’s October 1 notes state, "Jennifer Logel warned me about hearing rumors in the factory pertaining to Karon Lambert's behavior at a retirement party on Friday. I asked Jennifer, 'What kind of behavior?' And she stated, 'Grabbing, groping, and kissing hourly employees and leaving with one.’” (Tr. 215:19-25, Def. Ex. 2.)
On October 2, 2001, Garcia summoned Lambert to his office to discuss her behavior at the retirement party. (Tr. 216:9-12.) Garcia testified that he told Lambert that her conduct was “inappropriate” and that she should “keep some professionalism about her” when socializing with “Caterpillar people” outside of work. (Tr. 216:21-217:4.) According to Garcia’s testimony and his contemporaneous notes of the conversation, Lambert apologized for her behavior, saying she “didn’t know what happened” and that “she didn’t know whether she drank too much or somebody slipped something into her drink.” (Tr. 217:14-19.) His notes of this conversation state, “She finished the conversation by thanking me for trying to help her.” (Tr. 217:20-21) According to Lambert’s version of events, Garcia explicitly instructed her to stop seeing Hevelka. (Tr. 72:22-24.) She testified that she did not apologize to Garcia and told him she would continue seeing Hevelka if she chose. (Tr. 73:2-4.) She further testified that she had “maybe three, four beers,” and denied telling Garcia that she was drunk or believed somebody “slipped something into her drink.” (Tr. 73:5-9.) It is undisputed that Caterpillar does not have a policy prohibiting employees from dating within the company. (Tr. 384:12.)
15

Following Garcia’s meeting with Lambert on October 2, Garcia’s notes in his progress log reflect that he spoke with Lambert several times about socializing with hourly employees at work. (Tr. 218-28, Def.’s Ex. 2.) On October 5, 2001, Larry Eichelberger, a manager at Caterpillar, spoke with Garcia about issues concerning Lambert’s behavior that had been raised by Junior Smith, Eichelberger’s subordinate and an operations supervisor at the facility. (Tr. 220:7-14.) Smith, who was fired by Caterpillar in March 2006, testified that he had approached Eichelberger about the amount of time Lambert spent socializing with employees under his supervision. (Tr. 317:1-18, 346:23-25.) Smith told Eichelberger that he had spoken to Lambert repeatedly about wasting employees’ time in one of the “zones” he supervised, but to no effect. (Tr. 317:15-18.) After his meeting with Eichelberger, Garcia spoke to Lambert about “wasting time” and “spending too much time with hourly folks.” (Tr. 219:15-16.) Garcia also specifically mentioned Lambert’s relationship with Hevelka, reminding her of potential conflicts of interest between union employees and management. (Tr. 220:16-22.) Garcia admonished Lambert to “to stay focused on safety” and instructed her that she should contact Smith before entering the area of the plant under his supervision. (Tr. 219:16-24.)
Also on October 5, Garcia requested that Smith document Lambert’s troublesome behavior in writing. (Tr. 318:4-12.) When Smith failed to immediately provide such documentation, Garcia’s requests became more persistent. (Tr. 231:1-15, 320-321.) Smith testified that Miller and Eichelberger also made similar requests for written documentation of Smith’s complaints against Lambert, despite Smith’s insistence that Lambert had ceased being a problem following his initial complaint to Eichelberger. (Tr. 320:1-321:25.) According to Smith, all three men told him they needed the documentation because they planned to discharge Lambert. (Tr. 321:22-25, 323:1017.) Smith testified that the requests became more insistent throughout December. (Tr. 320-321.) Miller denied requesting documentation from Smith prior to Lambert’s discharge or telling Smith that
16

Caterpillar intended to discharge Lambert.4 (Tr. 374:1-3.) Smith also testified that he heard Garcia and Miller refer to Lambert frequently as “the bitch,” an allegation Miller denied at trial. (Tr. 324:21325:25, 327:24-328:3, 380:21-381:5.)
Wilma Ardelean, a supervisor on the facility’s “G paint line,” also testified at length about Lambert’s practice of socializing with coworkers. As a paint line supervisor, Ardelean was responsible for ensuring that individual tractor parts were painted before assembly further down the production line. (Tr. 252:7-15.) According to Ardelean, Lambert repeatedly distracted employees under Ardelean’s supervision. First, sometime in mid-November, Ardelean observed Lambert speaking on the factory floor with Owen Stuckey, an employee under her supervision and a member of the plant’s safety committee. When Ardelean returned to the floor more than an hour later, according to her testimony, Lambert and Stuckey were still engaged in conversation. (Tr. 258:18-259:10, Ex. 3.) Ardelean testified that she later told Lambert to notify her first if she needed to speak with Stuckey or anyone else on the paint line about a safety issue. (Tr. 259:11-19.) Within a week of the incident involving Stuckey, Ardelean again witnessed Lambert “laughing and talking” with another paint line employee, Pete Moore, who was a union committee member and not a member of the safety committee. (Tr. 262:12-19.) Ardelean once again confronted Lambert and told her to speak with employees “on your own time, not mine.” (Tr. 263:12-14.) Ardelean testified that after this she called Garcia, told him about both incidents, and told him that she had instructed Lambert on the proper protocol for contact with assembly line employees. (Tr. 263:18-263:5.)
Nonetheless, about a week later, however, Ardelean saw Lambert back on the paint line, this time talking with four hourly employees: Stuckey, Moore, Jerry Bastion, and a younger employee whose name she could not recall. (Tr. 264:24-265:7.) Afterwards, Ardelean testified that she told Lambert “to get off my line, stay off my line,” and Lambert left, visibly upset. (Tr. 265:15-

4

Eichelberger did not testify at trial.

17

266:14.) Ardelean said that she again called Garcia and complained about Lambert’s behavior. (Tr. 265:6-16.) Despite this, Ardelean testified, Lambert returned a fourth time to the paint line, and during this incident the line “backed up” while Lambert was talking to Moore, Stuckey, and Bastion. (Tr. 267:11-268:3.) According to Ardelean, it took three hours for the paint line to be restored to full operation. (Tr. 268:24-25.) On this occasion, Ardelean testified, she told Lambert to leave and warned her that “if she ever came back on my line, since her boss couldn't control her, I would.” (Tr. 268:4-7.) The next day, Ardelean documented these four incidents in an e-mail to her supervisor, Dick Hickey, which he in turn forwarded to Garcia on December 7, 2001. (Tr. 256:1924, 270:16-22, Ardelean E-Mail, Def.’s Ex. 3.) Garcia testified that he spoke to Lambert about Ardelean’s complaints after receiving the email. (Tr. 228:3-4, 20-22.) It is undisputed that Lambert was never disciplined for any of these alleged incidents.
Ardelean’s testimony is not uncontradicted. Stuckey denied ever having an “hour-and-a-half conversation” with Lambert during work hours. He also denied that the paint line was ever slowed or shut down as a result of a prolonged conversation with Lambert. (Tr. 289:2-11.) Ardelean’s own e-mail to Hickey also says nothing about the paint line breaking down. (Tr. 273:21-25, Ardelean E-mail, Def. Ex. 3.) Moore similarly testified that he had never had an hour-long conversation with Lambert on the paint line and that he spoke to Garcia about Ardelean’s complaints. (Tr. 303:9304:6, 306:13-22.) He further testified that any conversations he had with Lambert did not interfere with his job. (Tr. 306:15-18.) Garcia also could not recall ever speaking with Ardelean personally about her issues with Lambert. (238:16-19.) Finally, Lambert herself denied that Ardelean ever spoke to her about socializing with employees under her supervision or ordered her to stay off the paint line. (Tr. 125:25-126:3.)
On November 26, 2001, Garcia recorded a conversation in his notes in which he spoke to Lambert about her attire. (Progress Notes: Karon Lambert, Def. Ex. 2.) Specifically, Garcia testified that he reprimanded Lambert for wearing a “see-through” blouse and a skirt to work and
18

instructed her to put on a blazer and remain in her office for the rest of the day. (Tr. 221:15-18.) Garcia explained that neither skirts nor short pants are permitted on the factory floor due to welding and certain other “chemical operations” that could burn exposed skin. (Tr. 221:22-12.) Both Logel and Pittenger confirmed that Caterpillar policy prohibits wearing skirts in the safety shop, where Lambert worked. (Tr. 403:21-404:4, 421:10-24.) Logel further testified that she saw Lambert wearing a skirt and “see-through” blouse to work and was present when Garcia reprimanded Lambert. (Tr. 404:5-16.) Pittenger also recalled Lambert wearing a “black skirt,” and “somewhat see-through” white blouse that revealed a “zebra bra.” (Tr. 421:25-422:6.) Lambert denied ever wearing a sheer top to work and testified that Garcia never spoke to her about her attire. (Tr. 74:23-75:4.) She also claimed to have seen Pittenger and Hardy wear skirts to work. (Tr. 75:1015.)
On December 4, 2001, again according to Garcia’s notes, Garcia spoke with Lambert about her desire to become involved in the facility’s mentoring program. (Tr. 223:7-14.) On December 5, Garcia learned that Lambert had already spoken to Dick Hickey, a factory superintendent, about the mentoring program and following this conversation, reprimanded Lambert for discussing the program with Hickey without first consulting him. (Tr. 223:22-224:5.) Garcia explained that he did not think Lambert was ready for the mentoring program and disapproved of her approaching another employee who was not her supervisor rather than coming to him. (Tr. 223:25-224:5.)
Garcia twice spoke with Lambert about “keeping her hands to herself.” (Tr. 227-28, 294, Ex. 2.) On December 6, 2001, Garcia’s notes indicate that he and Owen Stuckey approached Garcia about Lambert’s habit of touching Stuckey in a way that made him uncomfortable. (Tr. 227:10-17, Def. Ex. 2.) According to Garcia’s testimony and notes, he spoke to Lambert on December 10, instructing her “to stay away from Owen Stuckey . . . unless it was strictly business” and “to keep her hands off Mr. Stuckey, he didn’t like it.” (Tr. 227:22-228:2.) At trial, Lambert testified that she had only touched Stuckey once, on the leg, to get his attention on the noisy factory
19

floor and that she never touched him again after speaking with Garcia. (Tr. 76:18-77:4.) On December 14, 2001, Garcia spoke to Lambert about an incident involving Dave Limon,
a union safety committeeman. (Tr. 231:13-232:6.) Garcia’s and Lambert’s testimony conflict as to the details, but Lambert admits that she touched Limon on the shoulder after a safety committee meeting. (Tr. 77:19-78:2, 231:18-25.) When questioned about the incident at trial, Limon simply testified that he “didn’t feel comfortable” when Lambert touched him when speaking to him. (Tr. 294:21-23.) Garcia testified that he again gave Lambert specific instructions on December 14 to “keep her hands off of people; they don’t like it.” (Tr. 232:7-12.) After speaking with Garcia, Lambert testified that she did not touch Limon for the remainder of her employment at Caterpillar. (Tr. 78:8-10, 295:18-21.)
Garcia acknowledged that the Caterpillar plant was not cited for any OSHA violations while Lambert was safety manager. Throughout her tenure at Caterpillar, Lambert never received any written warnings or complaints about her performance as safety manager, nor was she suspended at any time before her termination. (Tr. 84.) In addition, Garcia expressed approval of the manner in which Lambert conducted the two monthly manager meetings that he attended during her tenure at Caterpillar. (Tr. 236-37.)
E. Lambert’s Termination and Aftermath Garcia did not have the final authority to terminate Lambert, but he did recommend her discharge to Jerry Palmer, a vice-president at Caterpillar, by preparing a written summary of reasons for that recommendation. (Tr. 209:11-13.) On January 3, 2002, Garcia created a summary, based on his progress report file, of reasons he believed Lambert should be terminated. (Tr. 210:14-24, Lambert Termination Documents, Def.’s Ex. 6.) The document Garcia prepared regarding Lambert contained the following paragraph: In summary: In 94 working days as of January 3rd, 2002, I have had 14 different conversations that had to be documented and numerous other occasions that were not documented about Ms. Lambert's unprofessional behavior, inappropriate
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behavior with hourly employees, the image that she projects as a Caterpillar manager, wasting time, wasting other people’s time, not paying attention to business, and on two occasions held up production in two areas of the factory. (Lambert Termination Documents, Def.’s Ex. 6 at 2.) This document also refers to a conversation Garcia had with factory manager Timothy Tunt about Lambert’s “ineffectiveness in safety meetings.” (Tr. 233:17-21.) Garcia’s progress notes make no mention of such a conversation, but Tunt confirmed in his trial testimony that he complained to Garcia about Lambert’s performance at safety meetings sometime in November or December 2001. (Tr. 355:5-356:6.) Specifically, Tunt complained that Lambert focused on topics, such as Christmas tree safety, that were either only minimally relevant or completely unrelated to the work performed in the factory. (Tr. 355:6-17.) Tunt also told Garcia that he believed Lambert was misrepresenting safety statistics during a period when the plant’s safety record was “atrocious.” (Tr. 355:20-25.) Garcia never spoke with Lambert about Tunt’s complaints. (Tr. 236:8-10.) Some time prior to January 4, 2002 (the record contains no evidence concerning this process), Garcia’s recommendation was adopted. In the early afternoon on that date, Lambert testified that the plant’s lieutenant of security, two plant security officers, and Garcia came to Lambert’s office. (Tr. 85:2-3, 23.) One of these individuals (Lambert did not say which one) told Lambert her employment had been terminated and instructed her to clean out her desk. (Tr. 85:1416.) After allowing her to put her personal items in a box, they escorted her across the factory floor to the plant exit. (Tr. 85:15-86:1.) After arriving home that day, Lambert called Bill Miller, the plant’s labor relations manager, to discuss her discharge. (Tr. 86:5-9.) Miller recalled that Lambert complained primarily that her termination for poor performance was unjustified and that no one had discussed her performance with her before she was discharged. She did also mention harassment by Garcia. (Tr. 375:13376:4.) When Miller pressed her for more details, Lambert said that Garcia had “bumped into her and pressed against her breast once” and that Miller should consult Garcia’s “harem,” whom she
21

identified as Pittenger, Logel, and Hardy. (Tr. 376:5-18.) Miller testified that he spoke to all three women the next day and, according to Miller, none voiced any complaints about sexual harassment by Garcia. (Tr. 377:1-11.)
Also on January 4, 2002, Tim Anderson, a factory supervisor at Caterpillar, called Lambert after learning she had been discharged. (Tr. 86:16-87:5, Anderson Dep. 19-23.) Anderson, who was stationed at the Marion, Ohio facility at the time, had been working with Lambert remotely on an internal corporate audit of the Marion facility for about two months when Lambert was fired. (Anderson Dep. 14:16-15:6.) According to both Lambert’s and Anderson’s accounts of this phone call, Lambert described at least some of Garcia’s harassing behavior, including that he would “rub up against her chest” and “get a little too close to her body.” (Anderson Dep. 21:8-15.)
Lambert filed a charge of sexual harassment with the EEOC on February 5, 2002. (Def. 56.1 ¶ 8.) In preparing the official company response to the charge, Miller reviewed Garcia’s recommendation for Lambert’s termination. (Tr. 380:1-8.) Specifically, Miller testified that he “requested information” from Logel, Pittenger, and Hardy regarding Lambert’s interaction with other employees; their responses are not included in the record. (Tr. 380:9-14.) Miller also interviewed Garcia, who denied committing any of the acts alleged in Lambert’s charge. (Tr. 380:15-20.)
F. Other Alleged Incidents Involving Robert Garcia The court heard testimony regarding Garcia’s alleged sexual harassment of other women at Caterpillar. Judy Sawyer (then Judy Green) worked at Caterpillar’s Aurora facility from approximately 1995 through December 1999 as an employee for Vallens Safety Supply, an outside company that Caterpillar contracted to run the safety stores in its plants at that time. (Tr. 135:9-14, 137:16-24.) In 1999, about six months before Sawyer’s discharge, Garcia became the safety manager at the Aurora facility. (Tr. 140:15-18.) Sawyer testified that Garcia would come into the safety store to get coffee, and that on two occasions, he put his arm around her waist when she
22

bent to fill the coffee carafe, startling her. (Tr. 141:2-143.) As Sawyer attempted to move away, his arm grazed her breasts. (Tr. 141:2-143.)
The two incidents Sawyer described occurred within a period of a week and a half. (Tr. 145:3-6.) After both incidents, Sawyer complained to her immediate supervisor, Melanie Hadley,5 another Vallens employee, who reportedly told Sawyer that Garcia had behaved similarly around her. (Tr. 145-147.) In addition, Sawyer claims she and Hadley spoke with Dina Behrens, a Vallen employee who managed all Caterpillar’s on-site safety stores, regarding Garcia’s behavior. According to Sawyer, Behrens instructed them to “bite their tongues” because Vallen was engaged in negotiations to renew its contract with Caterpillar. (Tr. 472:20-473:8.) At trial, Behrens denied that Sawyer or Hadley complained to her about Garcia or that she told them not to speak out during the contract negotiations. (Tr. 391-392; 395-396.)
At some point, Sawyer also complained to Tim Anderson, then the second-shift supervisor at Caterpillar, that Garcia made her uncomfortable because he was “paw-y”; Sawyer was otherwise vague about Garcia’s behavior. (Tr. 152-153.) When Bill Miller learned of Sawyer’s complaint about Garcia from Anderson, he called Anderson to discuss the matter (the substance of the discussion was not presented at trial). (Tr. 385:12-18.) Sawyer also testified that Garcia would occasionally pat her backside when no one else was watching. (Tr. 149:12-16.) Sawyer said she never experienced inappropriate behavior from other employees while at Caterpillar. (Tr. 142:18143:3.) Several weeks after the incidents in the safety store, Vallen transferred Sawyer out of the Aurora facility. (Tr. 150:11-24.)
The court also heard testimony regarding Garcia’s interactions with Anne Marie Logan, another Vallen employee who worked at Caterpillar. Logan did not personally testify at trial, but Miller acknowledged that Logan had lodged a complaint about Garcia in February 2002, and that

5

Hadley did not testify at trial.

23

he interviewed Logan in a meeting at Vallen with Logan’s supervisor. (Tr. 365-367.) Miller recalled that Logan reported that Garcia’s hand had grazed her breast while reaching for something in the safety shop, but she was unsure whether the contact was accidental or intentional. (Tr. 368:5369:1.) Logan stated that there had been no other similar incidents involving Garcia. (Tr. 369:2-6.) Garcia denied touching Logan, but Miller nonetheless instructed him to stay out of the safety store unless escorted. (Tr. 371:8-21.) Behrens testified that Logan never personally complained to her and that Vallen eventually terminated Logan’s employment for reasons unrelated to any complaint about Garcia. II. Sandy Irvin’s Claim
A. Background On April 18, 2006, the EEOC brought a sexual harassment claim on behalf of Sandy Irvin based on Caterpillar’s failure to respond adequately to alleged sexual harassment by Irvin’s coworker, John Fay. Irvin began working for Caterpillar in April 2000 as an assembly-line operator in Caterpillar’s Pontiac, Illinois facility. Eight months later, in January 2001, she was promoted to second-shift supervisor. In March 2003, Caterpillar transferred Irvin to its Aurora facility, where she worked from 3:00 p.m. to 11:00 p.m., five days per week, as a second-shift supervisor on the “stick and boom” line in Building G. (Tr. 491:13-25.) “Stick and boom” describes the arm and bucket device on tractors that perform excavations; Irvin supervised 20 employees engaged in both “first operations” (the process of cutting sheet metal to make the “stick and boom”) and “second operations” (the process of beveling and welding these parts). (Tr. 492:1-24.) She shared an office with Jon Fay, the first-shift foreman, and Ron Clarner, the third-shift supervisor. (Tr. 493:6-11.) In January 2004, Irvin was promoted again, to the position of lead foreman in a separate building, a position she still held at the time of trial. (Tr. 494:2-17.)
24

Irvin received training in Caterpillar’s sexual harassment policy in January 2001, as part of her one-week supervisor orientation, and again in March 2003, when she was transferred to the Aurora facility. (Tr. 530-31.) During both orientations, Irvin received written copies of Caterpillar’s policies. (Tr. 531:17-18, 531:25-532:1) Irvin understood that these policies instructed employees experiencing sexual harassment to report it to the human resources department, but conceded that she never complained to human resources. (Tr. 531:1-7.) Irvin also understood that Caterpillar’s policy explicitly prohibited retaliation against an employee who reported workplace harassment. (Tr. 531:13-16.)
B. Evidence of Sexual Harassment Irvin testified at length about coworker Jon Fay’s conduct toward her beginning in the summer of 2003 and continuing through January 9, 2004, the date that Fay’s behavior “culminated in unwanted touching and solicitations for sex.” (Pl. Post-Trial Br. at 7.) Over a period of approximately six months, Fay made repeated comments to Irvin, both at work and in phone calls to her home, about her underwear, her bra, her smell, and her general appearance. (Tr. 629:22631:9.) According to Irvin’s testimony, Fay told her at various times that she “looked like she needed a spanking,” and that he was “horny,” and once asked her if she “wanted fries with that shake.” (Tr. 504-505.) While Fay could not recall all these incidents, he did not deny making these comments in his trial testimony. (Tr. 629-630.) Fay told Irvin he was in love with her “several” times during this period. (Tr. 507:19-20.) Once, Irvin accepted Fay’s invitation to go out for drinks after work, but Fay called it off at the last minute to be at home with his son. (Tr. 633.) On one occasion, Fay asked Irvin to show him a new tattoo on her lower back. (Tr. 526:1922, 629:17-630:1.) According to Fay, Irvin pulled her pants down a couple of inches to allow Fay to see the tattoo, and Fay pulled down her waistband “no more than an inch” further to get a better look. (Tr. 629:25-630:4.) Fay testified that Irvin did not object to his pulling down her waistband.
25

(Tr. 630:2-8.) Irvin recalled that Fay had “yanked” her pants down to see the tattoo, but did not testify that she objected to this behavior at the time. (Tr. 526:16-22.) Nor did she testify at trial that she found this behavior offensive or objectionable. (Tr. 526:16-22.)
Fay’s wife called Irvin at home twice and accused Irvin of having an affair with Fay. (Tr. 505:11-14, 507, 572:3-10.) Fay told Irvin that his wife had once threatened to shoot both of them. (Tr. 634:8-12.) Irvin took this threat seriously and feared Fay’s wife. (Tr. 505:9-21.)
Irvin testified that she was “offended” and “upset” by Fay’s comments and phone calls, and told him she was not interested in a romantic relationship. (Tr. 507:21-22, 508:5-7, 514:11-13.) She stated that she told Fay not to call her and hung up on him when his calls were personal rather than work-related. (Tr. 507:24-508:4.) Irvin acknowledged that she occasionally called Fay from home, but insisted she did so only to check on the status of production line operations or for other workrelated reasons. (Tr. 508:8-11.)
Although Irvin testified that Fay’s behavior offended her, there is evidence that their relationship was for the most part congenial in the months leading up to January 9, 2004. When Irvin first started working with Fay, she viewed him “as a friend at work.” (Tr. 541:13.) Irvin admitted that she willingly discussed Fay’s marital and personal problems with him and was “sympathetic” to Fay’s problems in his home life. (Tr. 541:21-542:4.) Irvin said that she discussed her own “issues with her husband” with Fay, and at one point gave Fay a copy of a self-help book that “helped [Irvin] when [she] had had similar problems in [her] own home life.” (Tr. 542:5-2.) Irvin testified that there were times when Fay would call just to “ask[] what was going on,” and that these conversations did not offend her. (Tr. 544:8-10.) According to Fay, Irvin never protested that he called too much, hung up on him, or otherwise complained when he discussed personal matters with her. (Tr. 629-632.) Further, in a written statement made at Robert Diveley (Irvin’s coworker) and Tunt’s request shortly after the incident on January 9, 2004, Irvin wrote that Fay began calling
26

her sometime during the summer, but did not start making sexually inappropriate comments until November or December 2003. (Tr. 546:4-21, 547:1-5, Def. Ex. 8.)
Irvin testified that sometime during the summer of 2003, she complained to Diveley about Fay’s comments, and ultimately about Fay’s behavior. (Tr. 565:16-21.) According to Diveley, Irvin initially complained that “John was talking about his family life and how his wife didn’t want him at home and that – basically, that was it.” (Tr. 566:10-14.) Diveley testified that Irvin hesitated to complain to Mike Brown, her direct supervisor, because “she really didn’t want to get John in trouble.” (Tr. 568:3-5.) In addition, Diveley noticed that sometime during that summer, Fay had begun to stay past the end of his shifts “until roughly 8:30, 9:00 o’clock at night,” a fact that both Fay and Irvin confirmed. (Tr. 499:14-23, 566:21-567:2.) The first time Irvin confided in Diveley, he advised her to talk to Mike Brown, the general foreman and Irvin’s direct supervisor. (Tr. 567:16-21.) At some point, Diveley also spoke to Fay personally about his behavior toward Irvin, cautioning him that other employees were talking about his “hanging round Sandy” and how it “[didn’t] look good.” (Tr. 568:11-18.) According to Diveley, Fay told him he was “in love” and then just shrugged and walked away. (Tr. 569:1-9.)
Diveley also testified that he himself spoke to Mike Brown at least twice about Irvin’s complaints. (Tr. 569:10-13.) According to Diveley, the first time he spoke to Brown, he told Brown that Irvin had complained about Fay “hanging around her, about how unhappy he is and all that kind of stuff,” but did not specifically report that any of Fay’s comments were sexual or harassing. (Tr. 569:23-570:3.) Diveley recalled that at some point, he did speak with Brown about Fay’s “sexually inappropriate comments,” but could not recall when. (Tr. 570:6-24.) Diveley believed the second time Irvin complained to him was after January 9, 2004, when he again advised her to talk to Brown. (Tr. 571:3-21.)
About a week after Diveley first advised Irvin to speak to Brown, Irvin testified that she did complain to Brown about Fay’s behavior, specifically that Fay was making “comments” to Irvin,
27

telling her that “he was in love” with her, and calling her at home. (Tr. 515:10-14.) According to Irvin, Brown expressed concern and assured Irvin that he would speak to Fay’s supervisor, Doug Holman. (Tr. 514:23-515:18.) Irvin testified that Fay’s objectionable behavior stopped for “a little bit” after she spoke with Diveley and Brown, but that over time, Fay resumed making comments and phone calls and staying late into her shift. (Tr. 516:8-18.) Irvin claimed she complained again to Brown about Fay’s behavior sometime in the fall of 2003, and again Brown said he would speak to Holman. (Tr. 517:13-518:13.) After this second complaint, Fay’s inappropriate comments and phone calls once more stopped for a period, but then started again and continued until January 9, 2004. (Tr. 518:10-519:2.) Contrary to Diveley and Irvin’s testimony, Brown testified in his deposition that before January 2004, Irvin “never mentioned anything other than that [Fay] stayed late and he was having some problems at home, and she had talked to him about those.” (Tr. 610:25-611:4.)
Under the company’s policy, Brown had a duty to report any alleged harassment that came to his attention to Timothy Tunt, Brown’s supervisor and the building’s general foreman. (Tr. 582:1024.) Tunt testified that Brown never spoke to him about Irvin’s complaints. (Tr. 582.) According to Brown, however, he made no such report because Irvin did not speak to him about any sexually inappropriate conduct until January 10, 2004, and then only in response to his own inquiry after he spoke with Anderson and Diveley. (Tr. 605:25-608:6.)
On January 9, 2004, Fay came into the office he shared with Irvin and Clarner and found Irvin, who had the flu, alone with her head on her desk. (Tr. 509:18-23.) Fay placed his arms on Irvin’s shoulders and began rubbing her back. (Tr. 509:22-24, 634:8-14.) Irvin told him to stop, but she claims Fay only rubbed her back harder in response. (Tr. 509:24-510:1.) Irvin pulled away from Fay, who walked back to his desk. (Tr. 510:1-2.) According to Irvin, Fay then said, “Now look what you did to me,” a reference, Irvin believed, to the fact that, as she could observe out of the corner of her eye, Fay had an erection. (Tr. 510:1-2, 24-8.) Fay denied making this statement. (Tr. 635:21-22.) Irvin testified that Fay then allegedly proposed that they “go out back and take care of
28

this,” which Irvin interpreted as a request for sex. (Tr. 510:9-17.) Fay denied making this or any similar comment. (Tr. 635:23-25.) Irvin testified that she immediately got her things together to leave, but as she began to make her way across the factory floor to the door, a distance of about a quarter mile, Fay pulled up on a scooter and told her to get on. (Tr. 510:16-20, 511:4.) Irvin climbed on behind Fay because, she said, she “was sick and it was quite a ways to the front door.” (Tr. 510:21-22.) At trial Fay could not recall giving Irvin a ride on a scooter that day or any other day. (Tr. 636:6-8.) According to Irvin, Fay told her again when they reached the factory door that “it’s not too late” and “we can still go out back and take care of this.” (Tr. 511:12-15.) Irvin refused and walked out of the building. (Tr. 511:17-18.)
On January 10, the day after her encounter with Fay, Irvin discussed Fay’s behavior with Diveley and Tim Anderson, who was then working as a second-shift “robot tech” at the Aurora facility, but was not Irvin’s supervisor. (Tr. 501, 512:6-14, 576:11-576:7.) Both Anderson and Diveley spoke to Brown about the incident. (Tr. 571:25-1.) Later that same day, Brown pulled Irvin aside to speak with him in his office. (Tr. 519-520, 607-608.) Brown testified in his deposition that Irvin “explained . . . that Fay had put his hands on her back and made a comment, a verbal comment to her.” (Tr. 607:23-24.) In response, Brown testified, “I told her that at that point . . . I had no other choice but to report it to John’s supervisor and up through the ladder.” (Tr. 606:24-607:1.) Brown did report Irvin’s allegations to Doug Holman, who recommended they take the matter to Tim Tunt.
Brown and Holman did report Irvin’s allegations to Tunt. Tunt testified that, prior to his discussion with Brown earlier that day, he had never heard about any improper behavior on Fay’s part. (Tr. 582:10-24.) Later that day, Tunt and Holman conducted individual interviews with both Fay and Irvin, with Tunt taking notes. (Tr. 613:4-8.) According to Tunt’s notes and testimony, Fay was defensive during his interview, claiming he believed he had been “set up” because “he had never gotten any complaints from Sandy . . . until she told him to stop rubbing her shoulders.” (Tr.
29

614:4-9, Tim Tunt Notes of Irvin Investigation, Def. Ex. 22.) Fay characterized their relationship as friendly and at times flirtatious, with Irvin freely sharing details about her own sex life and occasionally making off-color jokes. (Tr. 614.)
That afternoon, Holman summoned Irvin to a meeting with him and Tunt in Tunt’s office. During her meeting with Holman and Tunt, Irvin testified that she produced, at their request, a written account of Fay’s conduct. (Tr. 523-24.) In this statement, she recounted Fay’s behavior between the summer of 2003 and January 2004. (Irvin Statement to Tim Tunt, Def. Ex. 8.) In contrast with her testimony at trial, Irvin wrote that Fay did not begin making sexually inappropriate comments until “two months before” the January 2004 incident. (Id.)
By the time Irvin met with Tunt and Holman, they had already interviewed Fay. (Tr. 584:1323.) Irvin testified that during this meeting Holman, who did not testify at trial, asked her whether she had “led Fay on.” (Tr. 520:17-22.) Irvin testified that the question “really upset” her, and she denied doing anything to encourage Fay’s behavior. (Tr. 520:25-521:1.) Irvin further testified that Tunt said Fay’s behavior was “wrong,” but that as “a good-looking woman,” Irvin was expected to have a “thick skin in the shop.” (Tr. 521:19-20.) Tunt denied making these comments or otherwise suggesting that Irvin was somehow to blame. (Tr. 616:23-617:3.)
Tunt also testified that he interviewed Diveley about Irvin’s complaints, but did not interview Anderson because he had only spoken with Irvin about the incident on January 10, 2004. Tunt was unable to identify any eyewitnesses to Fay’s behavior, despite asking Holman and Brown to investigate whether anyone else in the plant knew about Fay’s alleged conduct toward Irvin. (Tr. 617:16-25.)
After considering Fay’s and Irvin’s accounts and the lack of eye witnesses to Fay’s conduct, Tunt concluded that Fay had not violated Caterpillar’s sexual harassment policy. (Tr. 618:16-23.)
30

Tunt gave Fay two days leave with pay6 “to think about his job and the seriousness of violating our prohibited harassment policy,” and referred him to the Employee Assistance Program for counseling regarding “the problems that he was having at home.” (Tr. 593:5-13, 594:8-18.) After January 9, 2004, Fay made no further inappropriate or sexual comments to Irvin. (Tr. 534:25-535:7.) Approximately two weeks after the incident with Fay, Irvin was promoted to lead foreman and transferred to another building. (Tr. 525:23-526:3.) Irvin testified that in July 2004 her desk was “broken into and ransacked,” but she could not establish any connection between the burglary and Fay. (Tr. 558:4-22.)
At trial, Irvin expressed dissatisfaction with the way Caterpillar handled her harassment complaints. (Tr. 560-61.) Specifically, Irvin testified that she was never informed of any disciplinary action taken against Fay. (Tr. 525:14-22.) In the first line of her statement, however, she wrote, “I wanted you [Tunt] to know that the only thing I want from this is for it to stop.” (Tr. 538:5-12; Irvin Statement to Tim Tunt, Def. Ex. 8..) In addition, Irvin wrote that she did not intend to take any further action so long as Fay’s inappropriate behavior ceased and would “respect any decision you make on handling this issue.” (Tr. 539:3-10.) Irvin admitted at trial that she had “great respect” for Tunt despite the comments he allegedly made at the meeting with Holman, and testified that Tunt “had shown good judgment” in dealing with Fay. (Tr. 540:2-4.) In fact, she selected Tunt as her mentor shortly after the incident with Fay. (Tr. 619:21-620:3.) The attorney for Caterpillar questioned Irvin several times at trial about how she would have preferred for Tunt and Caterpillar to handle the situation, to which Irvin replied “it wasn’t my decision to make,” “it’s not for me to decide,” and finally, simply, “I don’t know.” (Tr. 561:24-562:9.) Significantly, Irvin did not file her complaint with the EEOC until April 2006, after learning in March 2006 that she was about to receive a below-average performance rating from her supervisor. (Tr. 556:8-557:9.)

6

According to Tunt, the minimum amount of time an employee can be suspended

without pay is one week. (Tr. 618:10-13.)

31

III. Virginia Early’s Claim Virginia Early, the third and final remaining plaintiff in this case, claims that a security guard
at the Aurora facility sexually harassed her during July 2001, and that Caterpillar failed to respond adequately to her complaints. Early filed an initial charge with the EEOC on December 30, 2001, in which she alleged discrimination based on race and disability, but did not add a charge of sexual harassment until several months later, despite testifying that she was experiencing harassment at the time she filed the original charge. (Tr. 695:13-20.) At trial, Early gave no explanation for this initial omission save that “she was trying to concentrate on the racial part of [the complaint]” at the time. (Tr. 695:21-22.)
In 1994, Early received sexual harassment training and a copy of Caterpillar’s sexual harassment policy as part of her initial orientation as a welder, a position she still held at the time of trial. (Tr. 697:11-15, 17-18, 698:15-20.) She was also aware that the policy was posted on bulletin boards throughout the facility. (Tr. 698:9-14.)
At the time of the alleged sexually harassing behavior, Early was working as a second-shift welder on the “stick and boom” line in Building G. According to Early’s testimony, in early July she began to notice a certain security guard who would sometimes stare at her from the back of his scooter at a distance of perhaps a hundred feet. (Tr. 677:7-678:5.) Over a period of days, Early began to notice the guard moving closer to her, still perched on his bike and staring intently, but otherwise uncommunicative. (Tr. 678:9-15.) Then one day Early looked up from her welding to find this security guard sitting on a stool just two to three feet from her. (Tr. 678:18-679:1.) Startled, Early “jumped up” and moved closer to her coworker, Bruce Kirk. (Tr. 679:2-5.)
Soon thereafter, this security guard, who has never been identified by name, began to proposition Early for sex. (Tr. 679:6-13.) Early testified that from this time on, she told the guard “no” whenever he requested sex, but that he nonetheless continued to harass her. (Tr. 680:12-15.) Beginning July 19, Early began to record notes of these encounters on scraps of paper she kept in
32

her toolbox. (Tr. 680:17-23, Pl. Ex. 16.) On July 19, Early recorded that the guard “asked for sex,” and again on July 21, she wrote, “Security guard came again asking for sex,” alongside the number three to indicate the number of times he had asked that day. (Tr. 681:16-682:20.) Early testified that while the guard was hovering near her workstation, her supervisor, George Dutton, approached Early and asked her if she would rather work in a part of the facility with more female employees.7 (Tr. 682:23-683:10.) Early, however, had not previously mentioned the security guard to Dutton and did not say anything about him during that conversation. (Tr. 707:21-708:3.)
On July 23, Early wrote, “Asking for sex. Came over three times before lunch.” Early stated that this note indicated the guard asked her for sex three times in the four-hour period between when she started work at 3:30 pm and broke for lunch at around 6:30 pm or 7:00 pm. Early’s last entry, on July 25, states, “I asked him not to talk to me. He might get in trouble for sexual harassment.” (Tr. 684:20-21.) According to Early, the guard responded by saying “no one would have to know” and that “it could be between the two of us.” (Tr. 685:17-24.)
In addition to the comments recorded in her notes, Early testified that the guard would sometimes tell her about “what his wife didn’t do for him.” On one occasion, he told her that “in his country,” which he identified as Romania, he could “rape” her and “nothing would be done.” (Tr. 679:14-18. 685:4-10.) Early testified that this last comment genuinely frightened her and that the entire experience “messed [her] up emotionally” and that she cried whenever she thought about it. Despite this, she testified that the experience did not affect her work at Caterpillar. (Tr. 686:1-4, 718:18-719:5.) After July 25, the security guard never spoke to or otherwise bothered Early. (Tr. 714:14-17, Ex. 55.)
Early testified that she spoke to her coworker Bruce Kirk approximately three times and to her coworker Jimmy Ray Wilson at least once about the guard’s requests for sex. (Tr. 686-87.) Kirk

7

Early’s response to Dutton does not appear in the record.

33

testified that after Early brought the guard to his attention, he noticed him staring at Early “four or five times” over a course of weeks and that there were times when Early did not even seem aware that the guard was staring at her. (Tr. 727-728:12, 731:2-4.) On just one occasion, Kirk saw the guard get off his bike and approach Early; Kirk did not hear the substance of the conversation. (Tr. 728:15-729:11, 732:20-733:1.) Kirk could not recall how many times Early complained to him about the guard, but stated that Early seemed upset and agitated by the guard’s behavior and that he recommended she speak to her supervisor. (Tr. 729-720, 732:11-14.)
On July 27, Early called Caterpillar’s labor relations department and spoke to Doug Howell, a labor relations assistant who was filling in for the regular labor relations manager, Bill Miller. (Tr. 688:1-4, Howell Report, Def. Ex. 55) Early told Howell that someone had been soliciting sex from her over the past three or four weeks and that, as a result, she longer felt safe on the second shift and wanted to transfer to an environment with other women. (Tr. 688:5-8, 736:2-18, Ex. 55.) Early said she could not remember the name of her alleged harasser during this phone call, but that she did tell Howell that he was a security guard from Romania. (Tr. 689:5-13.) According to Early, Howell asked her whether she had a relationship with the guard, and she confirmed she did not. (Tr. 688:11-13.) Early testified that Howell closed the phone call by telling her someone would come out to meet with her. (Tr. 688:16-18.)
Howell’s contemporaneous report of his conversation with Early, however, tells a somewhat different story. First, Howell’s report indicates that Early complained about numerous issues during the phone call. In addition to her complaints about the security guard’s behavior, she also requested a transfer to a shift with other female employees because she was “tired of working with men.” (Tr. 744-746, Def. Ex. 55.) Early claimed that her supervisors had treated her unfairly because she was a woman and forced her to do work she felt was unsafe due to a previous injury. (Def. Ex. 55.) Howell’s report states that despite his repeated inquiries, Early refused to supply any identifying details regarding her alleged harasser. (Def. Ex. 55.) Howell testified at trial that Early would not
34

provide a physical description of her harasser, did not identify him as a security guard, and did not mention that he was from Romania. (Tr. 745:20-746:11.) Howell also asked whether Early had reported the alleged harassment to her supervisor or any other employees, and she said no. (Def. Ex. 55.) Further, according to Howell’s testimony and his report, Early stated that she had told this person to stop talking to her, that he had in fact stopped as of the time of the phone call, and that “she seemed to think the issue with him was over since it stopped.” (Tr. 748:10-20, Def. Ex. 55.) Howell testified that he asked whether Early “knew the individual outside of Caterpillar,” but denied asking whether Early was “intimate” with or “dating” the alleged harasser. (Tr. 749:18-750:1.) His report notes, “She also stated that she did not know the employee outside of Cat.” (Def. Ex. 55.) Howell’s notes do not mention that the security guard threatened to rape Early, and Howell testified that Early did not mention the word “rape” during their conversation. (Tr. 750; Def. Ex. 55.) After Early refused Howell’s repeated entreaties for more information, he reminded her that employee assistance programs were available.
Two or three days later, Doug Holman met with Early about her request for a transfer, which she had made earlier that year before any problems arose with the security guard. (Tr. 690:12-14, 690:23, 711:21-712:4.) When asked why she wanted to move, Early replied that she wished to transfer to the third shift so she could spend more time with her children. (Tr. 690:16-18.) Holman never asked Early about her sexual harassment complaint, and Early did not raise the issue because she said she assumed Holman would broach it himself if labor relations personnel had sent him to discuss it. (Tr. 690:25-19.) On July 30, 2001, Early was granted her requested transfer to the third shift, and has not since suffered any kind of harassment or inappropriate behavior while at Caterpillar. (Tr. 714:14-17, Ex. 55.)
According to Howell’s notes, on August 2, 2001, Howell called Early’s supervisor, Glenn Mendell, to confirm that Early had received her requested transfer to the third shift, and Mendell told Howell that the transfer had been granted “to help out with her attendance problems” and was
35

effective July 30. (Def. Ex. 55.) The following day, Howell called Doug Holman to confirm Early’s shift change “as a permanent move to help honor her shift preference as well as an effort to improve her attendance.” (Def. Ex. 55.)
Howell testified that he ultimately decided not to follow up on Early’s sexual harassment allegations for several reasons. First, he stated that he could not identify the alleged harasser due to Early’s refusal to supply identifying information, and he did not feel it was appropriate to “go out and start talking about this issue amongst everyone.” (Tr. 753:18-22.) In addition, according to Howell’s report, Early told Howell in their conversation on July 27, 2001 that she considered the issue “over” because the harassment had stopped, and, in fact, Howell did not receive any more complaints from Early about sexual harassment after the July 27 phone conversation. (Tr. 748, 75354; Def. Ex. 55.) Finally, Howell had confirmed that Early’s request for a permanent transfer had been granted and thus saw no need for follow-up absent further communication from Early. (Tr. 754.)
DISCUSSION Title VII prohibits an employer from discriminating “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex . . . .” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of hostile work environment sexual harassment, an employee must establish 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. Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th Cir. 2007), citing Kampmier v. Emeritus Corp., 472 F.3d 930, 940 (7th Cir. 2007). The third prong of this test—the severity or pervasiveness of the harassment—has both an objective and a subjective component. Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008), citing Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463 (7th Cir. 2002). The
36

plaintiff may satisfy the subjective prong by presenting evidence that she in fact perceived her workplace as hostile or abusive. Hilt-Dyson 282 F.3d at 463. In determining whether a workplace is objectively hostile, the court considers the totality of the circumstances, including the frequency and severity of the discriminatory conduct; “‘whether it is physically threatening or humiliating, or a mere offensive utterance;” and “whether it unreasonably interferes with an employee's work performance.’” See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)); Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1145 (7th Cir. 1997) (“Title VII is not directed against unpleasantness per se but only . . . against discrimination in the conditions of employment.” (quoting Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1009 (7th Cir. 1994)).
Under Title VII, different standards of employer liability apply depending on whether the alleged harasser is the victim’s supervisor or a coworker. An employer is strictly liable for harassment by a supervisor. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008) (citing Velez v. City of Chicago, 442 F.3d 1043, 1047 (7th Cir. 2006)). A “supervisor” for Title VII purposes is “not simply a person who possesses authority to oversee the plaintiff's job performance, but a person with the power to directly affect the terms and conditions of the plaintiff's employment.” Id. (citation omitted). This power includes generally “the authority to hire, fire, promote, demote, discipline or transfer . . . .” Id., citing Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 506 (7th Cir. 2004). An employer is liable for harassment by a coworker only if it was negligent in discovering or remedying the harassment, that is, if the employer “knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice.” Wyninger v. New Venture Gear, Inc, 361 F.3d 965, 976 (7th Cir. 2004); Williams v. Waste Mgmt. of Ill.,361 F.3d 1021, 1029 (7th 2004) (“Put differently, the employer can avoid liability for its employees' harassment if it takes prompt and appropriate corrective action reasonably likely to
37

prevent the harassment from recurring.” (quoting Tutman v. WBBM-TV, Inc./CBS, Inc., 209 F.3d

1044, 1048 (7th Cir.2000) (internal quotations omitted)).

If the harassed employee did not suffer a “tangible employment action,” such as discharge,

demotion, or undesirable reassignment, the employer may raise the Faragher/Ellerth affirmative

defense to avoid liability. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v.

City of Boca Raton, 524 U.S. 775, 807 (1998); see also Phelan v. Cook County, 463 F.3d 773, 783

(7th Cir. 2006 (citing Faragher, 524 U.S. at 807). To prevail on this defense, the employer must

show (1) that it “exercised reasonable care to prevent and correct promptly any sexually harassing

behavior,” and (2) that the “employee unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher, 524 U.S.

at 807; Phelan, 463 F.3d at 783 (citing Faragher, 524 U.S. at 807). The Faragher/Ellerth defense

is not available, however, if the employee suffered a “tangible employment action” as part of the

alleged harassment. Faragher, 524 U.S. at 808, citing Ellerth, 524 U.S. at 762-63; Phelan, 463 F.3d

at 784-85.

I.

Karon Lambert’s Sexual Harassment Claim

It is undisputed that Robert Garcia was Karon Lambert’s direct supervisor throughout her

employment at Caterpillar, making Defendant strictly liable for any sexual harassment of Lambert

by Garcia. It is further undisputed that Garcia recommended Lambert’s termination and that

Caterpillar adopted his recommendation. Had Plaintiff met its burden with respect to Karon

Lambert’s claim, therefore, the Faragher/Ellerth defense would be unavailable to Caterpillar. For

the reasons discussed below, however, the court finds that Lambert was not subjected to sexual

harassment while an employee at Caterpillar and that Caterpillar established a legitimate, non-

discriminatory reason for her dismissal. The court therefore enters judgment in favor of Defendant

on Lambert’s claim of hostile work environment.

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Lambert’s trial testimony paints a vivid picture of unwanted touching, salacious remarks, and disturbing threats that, if true, would describe an environment in which she was almost daily subjected to the kind of behavior that Title VII prohibits. From Lambert’s very first day at Caterpillar, Garcia, her immediate supervisor, allegedly ran his hands along her breasts several times and made sexually suggestive comments about both Lambert and other employees at the plant. According to Lambert, this conduct only intensified over the next two weeks, with Garcia sexually propositioning Lambert on several occasions and then threatening her with termination if she reported his conduct to other Caterpillar employees. Lambert conceded that the physical contact lessened toward the end of her employment, in part, she says, because she began to avoid Garcia after he allegedly groped and threatened her in his office. She maintained, nonetheless, that the harassing conduct continued throughout her employment, and further, that her rejection of Garcia’s advances was the underlying cause of her termination. Lambert testified that Garcia’s behavior made her feel worthless and humiliated and caused her to modify her dress and behavior to avoid attracting Garcia’s attention. She also testified that Garcia’s jealous comments and threats frightened and intimidated her. She did not, however, claim that Garcia’s behavior affected her job performance.
Despite Lambert’s extensive and vivid testimony, substantial contravening evidence counsels against swallowing her account whole. Throughout her testimony, Lambert asserted that her coworkers, Vicki Pittenger, Jenny Logel, and Jessica Hardy had all suffered inappropriate and harassing behavior at Garcia’s hands. Yet each of these witnesses took the stand and unambiguously denied Lambert’s assertions. All three independently testified that Garcia had never touched them inappropriately or made any sexually suggestive remarks to them. Logel denied that Garcia had rubbed candy across her breasts or otherwise touched or commented on her body at any time. Pittenger likewise denied insinuating that other women tolerated Garcia’s offensive behavior or saying that Garcia “just gets his daily feels.” Logel and Hardy, who according to Lambert were also present, confirmed Pittenger’s testimony. Hardy testified that she, not Garcia, referred to
39

Pittenger, Logel, and herself as Garcia’s “harem,” and that Garcia reprimanded Hardy in response. Notably, at least one of these witnesses was demonstrably willing to speak up in response to harassment: Hardy testified that she had personally made multiple complaints to Miller and Garcia about sexually inappropriate behavior at Caterpillar, all of which were addressed to her satisfaction. While all three women are currently employed by Caterpillar, none were working under Garcia, who retired in 2003, at the time of trial.
Garcia himself also flatly denied all allegations of harassing behavior directed at Lambert or any other woman at Caterpillar. Garcia’s denials, while slight on their own, gain significant weight when considered alongside Pittenger, Logel, and Hardy’s testimony not only that Garcia never behaved inappropriately toward them, but also that Lambert never complained to any of them about Garcia during her employment.
Pittenger and Hardy’s testimony and Lambert’s own previous statements also cast significant doubt on Lambert’s account at trial of the dinner in Peoria. Whereas at trial Lambert described herself as anxious and uncomfortable that evening, Pittenger and Hardy recalled that she seemed happy and relaxed, going so far as to tell a stranger how much she was enjoying herself and her job. In addition, Lambert’s earlier description of Garcia’s harassing behavior, recorded in an e-mail to the EEOC after Lambert filed her charge, stated that Garcia pressed up against her in the booth and made mock complimentary remarks on the way she ate. The letter did not mention that Garcia slid his hand under Lambert’s thigh or backside or that he said he wanted to “fork” her, as Lambert testified at trial.
Finally, Lambert’s own actions suggest that any harassment was both less frequent and less severe than the descriptions in her trial testimony. Not a single witness testified that Lambert complained about sexual harassment while employed at Caterpillar. Lambert did complain to Tim Anderson and Pete Moore about her working relationship with Garcia, but neither man recalled Lambert’s complaining that Garcia had sexually harassed her. Not one witness called at trial–not
40

Lambert’s coworkers, not her current husband, not members of the union–could recall hearing Lambert complain about Garcia’s sexually inappropriate behavior until the date she was fired, when she unburdened herself to Miller and Anderson over the phone.
Lambert explained her failure to report Garcia’s behavior as due in part to a lack of training in Caterpillar’s sexual harassment policies. The court agrees with Plaintiff that Wolff’s testimony that he recalled training Lambert has little weight, given the sheer number of employees he trained over the course of several years, his inability to recall any other attendees on that date, and the lack of documentation of Lambert’s attendance at any training sessions. This leaves her testimony that she received no sexual harassment training uncontradicted, despite the parties’ stipulation regarding the substantial training program at Caterpillar, described above. Still, Caterpillar’s alleged failure to train Lambert in its policies is just one factor this court must consider in assessing her claim. Lambert knew Caterpillar had a sexual harassment policy and recognized Garcia’s alleged behavior as “sexual harassment” based on her training under previous employers. While this does not excuse Caterpillar’s duty to train all its incoming employees in its sexual harassment policy, it weighs against Lambert’s assertions that she was uncertain about how to respond to Garcia’s harassing behavior.
The EEOC presented evidence that two Vallen Safety Supply Company employees, independently contracted to operate Caterpillar’s safety stores in their plants, complained to Caterpillar of sexual harassment by Garcia and that Caterpillar failed to act on these complaints. One of these employees, Judy Sawyer (now Judy Green), testified that Garcia brushed up against her twice in the safety store and put his arm around her waist. Sawyer complained to Anderson about Garcia, but admitted she was “unspecific,” saying only that Garcia sometimes stood too close and that she considered “unprofessional.” Caterpillar could perhaps have pursued the complaint more aggressively, but the court cannot agree that Sawyer’s vague allegations were sufficient to put Caterpillar notice that Garcia had “engaged in sexual harassment.” (Pl. Post-Trial Br. at 5.) Because the EEOC did not present the second Vallen employee, Ann Marie Logan, at trial, the court
41

heard only Miller’s recollection of her complaint about Garcia. Miller recalled that Logan said Garcia had once brushed up against her breast while she was reaching for something on an upper shelf, but she could not say whether his action was intentional or accidental. Miller spoke to Garcia and he denied Logan’s allegations. Again, given the uncertainty with which Logan herself described the encounter and Garcia’s denial, the court is not persuaded that Miller or Caterpillar failed to address known sexual harassment or that the circumstances involving Sawyer and Logan furnishes support for Lambert’s own less credible claim.
Based on the evidence as a whole, the court concludes that any unwelcome sexual conduct Lambert suffered was not severe or pervasive enough to create a hostile work environment during her employment with Caterpillar. Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 505 (7th Cir. 2004). Weighed against Pittenger, Logel, and Hardy’s independent and coherent testimony that Garcia did not, as Lambert claimed, act sexually inappropriately toward any one of them, the court simply cannot credit Lambert’s testimony that Garcia’s sexually harassing behavior was known and widely tolerated by female employees at Caterpillar. Lambert’s testimony on other topics, such as her mood the night of the dinner in Peoria or whether she had ever worn clothing unsuitable for the factory floor, was similarly contradicted by multiple witnesses. Finally, there is the fact that Lambert complained to coworkers about her professional relationship with Garcia, but never breathed a word about sexual harassment, even to family and friends, until the day she was fired. In short, the court did not find Lambert’s account of her experience at Caterpillar credible in light of such potent contradicting evidence.
But even if the EEOC had met its burden of showing a hostile work environment under the first three prongs of its claim, the court is not persuaded that Garcia’s alleged behavior or Lambert’s rejection of his advances ultimately led to Lambert’s termination. Caterpillar presented substantial and convincing evidence that Lambert was discharged due to poor job performance. Garcia’s progress log, prompted by Logel’s account of Lambert’s behavior at a retirement party, catalogues
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numerous complaints from third parties about Lambert’s disruptive and unprofessional behavior. On at least three occasions, Garcia reprimanded Lambert for excessive socializing with other employees during work hours; on at least two occasions, he spoke with Lambert about touching other employees in a way that made them uncomfortable; and Garcia had to address Lambert about her inappropriate work attire, which kept Lambert confined to her office for an entire day due to the plant’s policy prohibiting skirts or short pants on the factory floor.
Significantly, each incident in Garcia’s notes was corroborated at trial by the other individuals involved. Junior Smith testified that he complained to his supervisor, Larry Eichelberger, about Lambert’s habit of chatting up employees under his supervision. Wilma Ardelean testified at length, albeit with some apparent embellishment, that Lambert repeatedly came onto her assembly line and socialized with workers for substantial periods of time. Both Owen Stuckey and Dave Limon testified that they complained to Garcia about Lambert’s habit of touching them with unwelcome intimacy. Logel and Pittenger confirmed that Caterpillar has a policy prohibiting skirts on the factory floor and recalled seeing Lambert in a skirt and sheer top. Lambert insisted that Garcia never confronted her about her attire, but Logel testified credibly that she was present when Garcia reprimanded Lambert and ordered her to remain in her office. Finally, Timothy Tunt complained to Garcia about how Lambert ran the monthly safety meetings for management employees.
In short, the evidence shows that Lambert suffered an adverse employment action due to unprofessional behavior and poor performance, rather than her rejection of Garcia’s advances. II. Karon Lambert’s Retaliation Claim
The EEOC also alleges that Garcia fired Lambert in retaliation for rejecting his sexual advances. Ordinarily, the EEOC could prevail on this claim under either the direct or indirect method of proof. Andonissamy, 547 F.3d at 850. Under the direct method, the EEOC must establish (1) that Lambert engaged in a statutorily protected activity; (2) that she suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse
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action. Id. Under the indirect method, the EEOC must establish that Lambert (1) engaged in a statutorily protected activity; (2) met her employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than similarly situated employees who did not engage in the protected activity. Id. The Seventh Circuit has not yet addressed whether the refusal of sexual advances constitutes a protected activity, and district courts are currently divided on this issue.8 Because the court did not find Lambert’s testimony regarding Garcia’s behavior

8

When confronted with this issue, most courts in this district have held that Title VII

does not recognize refusal of an employer’s sexual advances as protected activity. Farfaras v.

Citizens Bank & Trust of Chicago, No. 01 C 8720, 2004 WL 2034077, at *2 (N.D. Ill. Aug. 30, 2004)

(declining to hold that rejecting sexual advances qualifies as protected activity for purposes of

making a retaliation claim); Jones v. County of Cook, No. 01 C 9876, 2002 WL 1611606, at *4

(N.D. Ill. July 17, 2002) (Aspen, J.) (anti-retaliation provision of Title VII “is to prevent employee

grievances and Title VII claims from being deterred,” not to protect an employee who has merely

refused an employer’s sexual advances); Bowers v. Radiological Soc’y of North America, Inc., 57

F. Supp. 2d 594, 599 (N.D. Ill.1999) (Bucklo, J.) (the rejection of a sexual relationship without

submitting a complaint to management or filing a charge is insufficient to state a claim for

retaliation); Speer v. Rand McNally & Co., No. 95 C 6269, 1996 WL 667810, at *8 n.4 (N.D. Ill.

Nov.15, 1996) (Marovich, J.) (refusal of sexual advances is not a “protected activity” for Title VII

retaliation claim); Finley v. Rodman & Renshaw, Inc., No. 93 C 5504, 1993 WL 512608, at *3 (N.D.

Ill. Dec. 8, 1993) (Leinenweber, J.) (where plaintiff did not complain to anyone at company about

harassment and filed EEOC charge only after leaving company, her allegations of retaliation “for

not reciprocating [her supervisor’s] advances is a charge that fits more readily under her sexual

harassment claim.”).

Two judges on this court, however, have arrived at the opposite conclusion: Estes v. Illinois

Dept. of Human Servs., No. 05 C 5750, 2007 WL 551554, *4 (N.D. Ill. Feb. 16, 2007) (Guzman,

J.) (holding refusal of employer’s sexual advances constituted a protected activity, but limited to

facts where employer made no effort to apprise plaintiff of its sexual harassment policy; the alleged

harasser is plaintiff's immediate supervisor, second-in-command at company and a decades-long

friend of head of company; and plaintiff was told not to complain to management because any

report would backfire on plaintiff); Roberts v. County of Cook, No. 01 C 9373, 2004 WL 1088230,

at *5 (N.D. Ill. May 12, 2004) (Kennelly, J.) (“Title VII makes it unlawful ‘for an employer to

discriminate against any of his employees ... because he has opposed any practice made an

unlawful employment practice by this subchapter, or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under this

subchapter.’” (quoting 42 U.S.C. § 2000e-3(a)) (court’s emphasis)).

To the court’s knowledge, only one Court of Appeals has addressed this issue and

interpreted Title VII as protecting this kind of conduct: Ogden v. Wax Works, Inc. 214 F.3d 999,

1007 (8th Cir. 2000) (recognizing refusing an employer’s sexual advances as “opposing

discriminatory conduct” within the meaning of 42 U.S.C. § 2000e-3(a)).

(continued...) 44

credible, however, this question can wait for another day. Assuming the question is answered favorably to Plaintiff, the court notes that the evidence of legitimate reasons for Lambert’s discharge would defeat any claim that her discharge was retaliatory, as well. III. Sandy Irvin’s Sexual Harassment Claim
Sandy Irvin alleges that her coworker John Fay made sexually explicit comments and behaved inappropriately toward over approximately five months in 2003 and early 2004, and that Caterpillar failed to respond adequately to this conduct. The court is uncertain that Plaintiff has presented evidence of conduct sufficiently severe or pervasive to create a hostile work environment. Assuming this burden is met, however, the court concludes Caterpillar was not negligent in discovering or addressing the alleged harassment. See Williams, 361 F.3d at1029 (employer can avoid liability by taking “prompt appropriate corrective action” once a complaint of harassment comes to its attention).
A. Evidence of a hostile work environment A successful hostile work environment claim requires both subjective and objective proof of harassment so severe or pervasive it alters the employee’s work environment. Lapka v. Chertoff, 517 F.3d at 983. The court begins by addressing Irvin’s subjective response to the circumstances. As Fay himself admitted, he made sexually suggestive and inappropriate comments to Irvin. Among these were comments about Irvin’s underwear and the color of her bra. Fay also told Irvin he was in love with her, that she “looked like she needed a spanking,” and asked her at least once “whether she wanted fries with that shake.” Irvin testified that these comments were unwelcome and continued on and off for several months beginning in summer 2003. There is at least some evidence that is arguably inconsistent with Irvin’s claim that Fay’s behavior offended and upset her, however: Irvin acknowledged that she openly sympathized with Fay and was receptive to his personal
8(...continued)
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problems, having experienced similar issues in her own marriage. She gave Fay a self-help book she had found useful and even agreed to have a beer with Fay after work, though Fay ultimately called it off.
There was conflicting testimony about whether Irvin objected to Fay’s phone calls about his personal life. According to Diveley, in her initial complaints, Irvin said only that she was upset because Fay discussed his personal life with her, not because Fay had made sexually inappropriate comments to her. Irvin also expressed fear that Fay would be disciplined if she reported his behavior to her supervisor. Irvin’s desire to spare Fay a reprimand is, again, arguably inconsistent with her contention that she was offended or threatened by Fay’s conduct. To the extent that Fay’s calls and his habit of staying at the plant after hours were brought to their attention, Caterpillar managers might have pushed harder to determine the nature of his interest in Irvin. Irvin’s reluctance to push for discipline, however, means that Caterpillar reasonably could conclude Fay’s conduct was not severe or pervasive enough to infect her work environment. Nor did Irvin offer proof that Fay’s behavior toward her affected her work performance, beyond saying she was “distracted” and “upset” by Fay’s phone calls. (Tr. 509:5.)
Significantly, Irvin’s written account of Fay’s behavior, recorded just one day after the January 2004 incident, describes a milder version of events than her trial testimony. Although the statement mentions phone calls from Fay beginning in the summer of 2003, it also states that Fay did not begin making sexually explicit comments to her until November or December 2003. According to this contemporaneous statement, Fay massaged Irvin’s back until she firmly requested twice that he stop, at which point Fay moved across the room to his desk, where he allegedly sexually propositioned Irvin and alluded to having an erection. Yet, after gathering her things to leave, Irvin accepted a ride to the factory door on Fay’s scooter, a distance of only a quarter mile. Irvin testified that she did this not out of any sense of fear or intimidation, but because she was suffering from the flu. The court is puzzled that as upset and offended as Irvin claimed to be, she
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nevertheless agreed to share a scooter with her harasser. That Irvin waited until July 2004 to file a claim with the EEOC, after learning about a pending negative performance evaluation, likewise casts doubt on the alleged severity of Fay’s conduct.
Moreover, putting aside Irvin’s subjective perceptions, the court is uncertain that the objective prong of the test is met. A reasonable person might well consider at least some of Fay’s acts and language vulgar or offensive, particularly his sexually explicit comments about Irvin’s body and dress. Title VII does not, however, impose liability on an employer for mere vulgarities or even for uninvited physical contact that is not severe enough to intimidate or unreasonably interfere with an individual’s work performance. See Hildebrandt v. Ill. Dept. of Nat. Res., 347 F.3d 1014, 1035 (7th Cir. 2003) (“Harassment, in the context of Title VII, involves conduct that unreasonably interferes with a person's work performance or creates an intimidating, hostile, or offensive work environment.” (quoting Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir.1998)); Moser v. Indiana Dept. of Corrections, 406 F.3d 895, 902-03 (7th Cir. 2005) (handful of inappropriate comments amounting to “heedless jokes,” as opposed to “serious or threatening comments,” insufficient to establish actionable sexual harassment). Fay’s conduct, as Irvin admits, at most upset and distracted her, but did not “unreasonably interfere” with her work. Hildebrandt, 347 F.3d at 1035. For other reasons, explained below, the court rules in favor of Defendant on Irvin’s claim, but simply notes here that it is not clear on this record that Plaintiff has presented evidence sufficient to meet either the subjective or objective prong of the test.
B. Notice to Caterpillar Despite professing knowledge of and training in Caterpillar’s sexual harassment policy, Irvin did not report Fay’s behavior to human resources or labor relations, as she knew the policy required. Although Irvin claims she complained to Brown, then her direct supervisor, at least twice in the fall of 2003, Brown recalls no mention of any sexually inappropriate behavior prior to January 10, 2004. Moreover, Irvin’s initial complaints to her coworker Bob Diveley concerned, according to Diveley,
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Fay’s calls and conversations regarding his marital issues. Any discussion of sexually inappropriate comments came later—exactly when Diveley could not recall, but he believed the second time Irvin complained to him was after January 9, 2004. Diveley testified that he reported Irvin’s earlier complaint to Brown, an assertion Brown denied at trial. Assuming that Diveley did report Irvin’s complaint, the court is not troubled by Brown’s failure to recognize that complaint—that Fay made her uncomfortable by sharing intimate details about his personal life—as an allegation of sexually inappropriate behavior. On January 10, Fay spoke with coworkers Anderson and Diveley about Fay’s behavior the previous day, and the two men promptly related the incident to her supervisor. Until that time, the evidence shows that with the possible exception of Diveley, no one else at Caterpillar was aware of any sexually inappropriate conduct by Fay
C. Caterpillar’s Response to Fay’s January 2004 Complaint Even if Fay’s behavior were sufficient to create a hostile work environment, once Caterpillar managers became aware of Fay’s inappropriate behavior (which the weight of the evidence indicates was January 10, 2004), they acted promptly and consistently with the company’s sexual harassment policy. On January 10, 2004, Tunt spoke individually with Fay and Irvin and took notes on both interviews. He also obtained a written statement from Irvin, in which she recorded, to the best of her recollection, Fay’s conduct between the summer of 2003 and January 9, 2004. Finally, Tunt interviewed Diveley, the only person with whom Irvin raised the matter prior to January 9, 2004. After weighing Fay’s and Irvin’s conflicting accounts and considering the absence of any third-party witnesses, Tunt concluded that the evidence did not support a finding that Fay had violated Caterpillar’s prohibited harassment policy. Tunt nevertheless suspended Fay for two days with pay and referred him to counseling. He also advised Fay and Irvin to avoid interacting with each other to the extent possible until Irvin’s promotion and transfer out of Fay’s building. Irvin herself could not articulate what Caterpillar should have done differently in handling her complaint. Both in her complaints to Diveley and in her written statement on January 10, 2004, Irvin
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stated that she did not want Fay to be punished and only wanted his inappropriate behavior to stop. Following the January 9, 2004 incident, she got her wish. The record is undisputed that Fay never bothered her again after that date. Further, when asked directly what would have been her ideal outcome, Irvin had no answer. Although Irvin testified that Tunt made certain demeaning and sexist comments during the January 10, 2004 meeting, her choice of Tunt as a mentor soon after as well as her testimony that he had “shown good judgment” in handling her issue with Fay undermine Irvin’s credibility on this point.
In conclusion, the evidence indicates that prior to January 9, 2004, Caterpillar had no notice Irvin was being subjected to sexually harassing conduct, and the earliest Caterpillar management knew of any inappropriate or harassing behavior on Fay’s part was January 10, 2004, the date Irvin complained to Diveley and Anderson about Fay’s behavior the previous day. Once the issue was raised, Caterpillar responded swiftly and appropriately in investigating and addressing Irvin’s allegations. The court therefore enters judgment for Defendant on the EEOC’s claim on Irvin’s behalf. IV. Virginia Early’s Sexual Harassment Claim
Virginia Early claims she suffered sexual harassment by another Caterpillar employee, an unidentified security guard, over approximately one week in July 2001. Early further claims that Caterpillar failed to take prompt and remedial action in response to her complaints about this harassment. At trial, Early presented uncontradicted evidence that she was sexually harassed. The evidence also revealed, however, that she failed to provide information necessary for Caterpillar to pursue the matter and, further, that Caterpillar acted reasonably in attempting to address Early’s allegations.
Early, by her own account, first noticed the security guard perched on his scooter in early July 2001, when he began to park near Early’s work area and stare at her as she worked. Each day he moved closer to Early, and eventually he began to speak to her. Early testified that from July 19
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to July 25, this security guard asked her almost daily, and sometimes several times a day, to have sex with him, and would occasionally describe what his wife refused to do for him sexually. Once, the security guard told Early that in his home country of Romania he could rape her without suffering any consequences. Early consistently refused the guard’s advances and told him to stop talking to her. When Early told him that he could get in trouble for sexual harassment, he responded that no one had to know, that it could just be between the two of them. The guard did not at any time touch or otherwise try to assault Early.
The security guard was never identified, and the only witness to any of this behavior was Bruce Kirk, Early’s coworker, who saw the security guard hovering around Early four or five times over the course of several weeks. Kirk observed the guard staring at Early while she worked, sometimes without her noticing, and at least once saw him get off his scooter and approach Early. Early also recorded some of her encounters with the guard on scraps of paper, dated July 19, 21, 23 and 25.
Plaintiff has carried its burden of proving that Early experienced sexual harassment. Early’s uncontradicted testimony regarding the security guard’s conduct was credible, particularly in light of her contemporaneous notes. The guard’s repeated solicitations for sex, coupled with the threat of rape, were sufficiently severe to alter Early’s work environment. See Quantock v. Shared Mktg. Servs., Inc., 312 F.3d 899, 904 (7th Cir. 2002). Further, although Early testified that the harassment did not disrupt her work, she stated that the guard’s threat of rape frightened her and that his behavior caused her significant emotional distress.
Under Caterpillar’s sexual harassment policy, an employee may contact Caterpillar’s labor relations department to notify the company of harassment. On July 27, 2001, Early did just that when she called Doug Howell. Howell took detailed notes of their conversation. In his report, Howell records that Early complained of someone hitting on her and asking for sexual favors. In addition to her complaints of sexual harassment, however, Early also stated that she wished to work around
50

other women, that her supervisors were treating her unfairly, and that she did not feel safe doing certain kinds of work due to a previous injury. According to Howell’s notes, he asked Early repeatedly to identify or describe her harasser, and Early refused to do so. She also told Howell that she considered the matter with the security guard over since she had requested the guard to stop talking to her and he had not spoken to her since. Howell’s report states that Howell spoke with Early’s supervisor on August 2 to confirm that Early had received her requested transfer to the third shift and that Howell called again the following day to confirm that the transfer was permanent.
Howell’s conversation with Early put Caterpillar on notice of the security guard’s sexually harassing conduct as of July 27, 2001. The only question remaining, then, is whether Howell responded reasonably to Early’s complaint. See Longstreet v. Illinois Dept. of Corrections, 276 F.3d 379, 382 (7th Cir. 2002) (“An employer's response to allegations of harassment ‘must be reasonably calculated to prevent further harassment under the particular facts and circumstances of the case at the time the allegations are made.’” (quoting Brooms v. Regal Tube Co., 881 F.2d 412, 421 (7th Cir.1989)). Howell testified that after learning that Early’s transfer request had been granted, he decided not to investigate her sexual harassment allegations because (1) he could not identify the alleged harasser without more information from Early; (2) Early told him she considered the issue over because the harassment had stopped; (3) Howell had confirmed that her request for a transfer had been granted and was permanent; and (4) after their conversation on July 27, 2001, Early did not contact Howell again with any complaints of sexual harassment. (Tr. 752-754.).
This court has noted that the fact that harassing behavior does not recur does not require the conclusion that the employer’s response was adequate. See EEOC v. Caterpillar, Inc., 503 F. Supp. 2d at 1010 (N.D. Ill. 2007) (Pallmeyer, J.) (citing Loughman v. Malnati Org. Inc., 395 F.3d 404, 407 (7th Cir. 2005)). Though Early’s transfer had the effect of removing her from her harasser, it was not a response to her harassment complaint, and Howell admitted that he did not take any action to follow up on Early’s sexual harassment complaint, other than to confirm that she had been
51

transferred. At the same time, Howell’s contemporaneous notes show that sexual harassment was not Early’s sole or even her primary complaint. Rather, Early spoke mostly of how “she was tired of working with men” and “wanted to move to an area where she was around women.” She also felt her supervisors had treated her unfairly and made her do work she considered unsafe. While the harassment Early claims to have suffered likely fueled her desire to work in a less male-dominated environment, it is clear that the security guard’s behavior was just one in a series of complaints she voiced to Howell that day.
In addition, Howell’s notes reveal that he did not know the full extent of the sexually inappropriate behavior Early testified to at trial. See Longstreet, 276 F.3d at 382 (“What is a reasonable response depends on the gravity of the harassment.”) Howell’s notes state that someone had “hit on” Early and “ask[ed] her for sexual favors,” but do not mention rape. Howell likewise testified that Early did not mention any threats of rape or violence when he spoke with her on July 27, 2001. Early claims she could not remember the security guard’s name, but told Howell that he was Romanian. Howell’s notes record, however, that Early refused to answer any of his inquiries regarding the identity of her harasser and did not supply any identifying information. Further, his report states that she considered the matter “over” since the harassing behavior had stopped. Finally, there is the fact that Early herself failed to recall the incident when she filed her initial complaint with the EEOC alleging race and disability discrimination with no mention sexual harassment.
While Caterpillar may well have done more in response, the court is not convinced it was unreasonable in addressing Early’s complaint. Howell’s notes, taken at the time of Early’s complaint and thus relatively untainted by hindsight or memory loss, indicate that Early told him someone had “hit on her” and sought “sexual favors.” While not insignificant, sexually harassing comments and solicitations do not carry the same import as the threat of rape or assault, which Early did not report
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in the July 27, 2001 phone conversation. In fact, Early focused primarily on her issues with her supervisors during this conversation, whom she perceived as sexist, unfair, and unresponsive.
Moreover, Early refused to aid Howell in discovering and confronting her alleged harasser. When Howell pressed her for specifics, Early told Howell she believed the harassment had ceased and repeatedly refused to help identify her harasser. Confronted with Early’s unyielding resistance to his requests for information, Howell reasonably concluded that Early did not want him to act on her complaint and encouraged her to contact him if she changed her mind. But more important, Howell quite simply could not act on Early’s complaint given that the only information he had regarding the harassing employee was his gender. As far as Howell knew, only he, Early, and the unidentified harasser were in the know, and he did not think it appropriate to begin questioning random employees about Early’s allegations, particularly when Early herself was so reticent. Considering the conversation as a whole, Howell reasonably concluded that Early wanted, above all, to transfer to another shift, as she had previously requested, and he considered the matter at an end once he confirmed that transfer had taken effect. In sum, the court concludes that Howell acted with reasonable care in the face of Early’s refusal to take advantage of his attempts to address her complaints of sexual harassment.
CONCLUSION For the reasons explained above, the court enters judgment in favor of Defendant on all counts. Accordingly, Plaintiff’s request for injunctive and equitable relief is denied.
ENTER:

Dated:

June 18, 2009

_________________________________________

REBECCA R. PALLMEYER

United States District Judge

53

 
 Case: 1:03-cv-5636 As of: 06/04/2017 06:04 PM CDT 1 of 14
BROWN,CASREF,PROTO,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:03−cv−05636

EEOC v. Caterpillar Inc Assigned to: Honorable Rebecca R. Pallmeyer Demand: $0 Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 08/13/2003 Date Terminated: 06/18/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Ann M Henry Equal Employment Opportunity Commission 500 W. Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8098 Email: ann.henry@eeoc.gov ATTORNEY TO BE NOTICED

Diane Ilene Smason United States Equal Employment Opportunity Commission Legal Unit 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8120 Email: diane.smason@eeoc.gov ATTORNEY TO BE NOTICED

John C. Hendrickson Equal Employment Opportunity Commission 500 West Madison Street Suite 2000 Chicago, IL 60661 (312) 869−8099 Email: john.hendrickson@eeoc.gov ATTORNEY TO BE NOTICED

Lauren G Dreilinger United States Equal Employment Opportunity Commission 500 West Madison Street Suite 2800 Chicago, IL 60661 (312) 353−7568 TERMINATED: 06/21/2006

Laurie S. Elkin Equal Employment Opportunity Commission 500 W. Madison Street 2800 Chicago, IL 60661 (312) 353−7259 Email: laurie.elkin@eeoc.gov ATTORNEY TO BE NOTICED

Noelle Christine Brennan

Case: 1:03-cv-5636 As of: 06/04/2017 06:04 PM CDT 2 of 14
Noelle Brennan & Associates, Ltd. 20 South Clark Street Suite 1530 Chicago, IL 60603 (312) 422−0001 Email: nbrennan@nbrennan−associates.com TERMINATED: 12/18/2003

V. Defendant Caterpillar Inc

represented by Christopher James DeGroff Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5000 Email: cdegroff@seyfarth.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Warner Seyfarth Shaw LLP 55 Easet Monroe Street Suite 4200 Chicago, IL 60603 (312) 460−5000 TERMINATED: 12/13/2006 LEAD ATTORNEY
Anne Elizabeth Duprey Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5000 Email: aduprey@seyfarth.com ATTORNEY TO BE NOTICED
Jason M Torres Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5000 Email: jtorres@seyfarth.com ATTORNEY TO BE NOTICED
Johna G. Gabriel 100 N.E. Adams Street Peoria, IL 61629−7310 (309) 494−1832 TERMINATED: 03/22/2005 ATTORNEY TO BE NOTICED
Joseph S. Turner Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5000 Email: jturner@seyfarth.com ATTORNEY TO BE NOTICED

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Michael Andrew McGuire Seyfarth Shaw LLP 55 Easet Monroe Street Suite 4200 Chicago, IL 60603 (312) 460−5000 TERMINATED: 12/13/2006
Rebecca Pratt DeGroff Seyfarth Shaw LLP 233 South Wacker Drive Suite 8000 Chicago, IL 60606 (312) 460−5000 Email: rdegroff@seyfarth.com ATTORNEY TO BE NOTICED
Sheldon Leigh Jeter Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago, IL 60603 312−460−5000 Email: LJeter@Seyfarth.com ATTORNEY TO BE NOTICED

Date Filed 08/13/2003 08/15/2003 08/18/2003 08/22/2003 08/27/2003 10/14/2003 10/14/2003 10/20/2003
10/20/2003 12/03/2003 12/08/2003

# Docket Text
1 COMPLAINT; jury demand − Civil cover sheet − Appearance(s) of Lauren G. Dreilinger, Noelle Christine Brennan, John C. Hendrickson as attorney(s) for plaintiff (No summons(es) issued.) (Documents: 1−1 through 1−3) (hp) (Entered: 08/14/2003)
2 ATTORNEY APPEARANCE for defendant Caterpillar Inc by Michael A. Warner, Joseph S. Turner, Michael Andrew McGuire. (vmj) (Entered: 08/18/2003)
3 ATTORNEY APPEARANCE for defendant Caterpillar Inc by Johna Gabrielle Gaffke (ntf) (Entered: 08/19/2003)
4 WAIVER of service of summons as to defendant sent on 8/14/03. (hp) (Entered: 08/26/2003)
SCHEDULE set on 8/27/03 by Hon. Rebecca R. Pallmeyer : Status hearing set before Judge Pallmeyer for 9:00 on 10/20/03, courtroom 2119. Mailed notice (etv) (Entered: 08/27/2003)
5 ANSWER and affirmative defenses to plaintiff's complaint by defendant [1−1]; Notice. (hp) (Entered: 10/16/2003)
6 ATTORNEY APPEARANCE for defendant by Sheldon Leigh Jeter (hp) (Entered: 10/16/2003)
SCHEDULE set on 10/20/03 by Hon. Rebecca R. Pallmeyer : Status hearing held and continued to 9:00 on 12/18/03. Rule 26(a)(1) disclosures to be made within 14 days. Fact discovery ordered closed on 5/28/04. Plaintiff's expert disclosure 7/27/04; Defendant's expert disclosure 8/27/04. Expert discovery completed by 10/15/04. Plaintiff and Defendant allowed to join additional parties and to amend pleadings by 1/23/04. Dispositive motions due 7/30/04. Mailed notice (etv) (Entered: 10/20/2003)
7 ATTORNEY APPEARANCE for plaintiff by Diane Ilene Smason (hp) (Entered: 10/21/2003)
8 WITHDRAWAL by plaintiff of appearance of Noelle C. Brennan ; Notice (hp) (Entered: 12/05/2003)
9 ATTORNEY APPEARANCE for defendant by Jason M. Torres (hp) (Entered: 12/09/2003)

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12/17/2003 12/17/2003 12/18/2003
12/18/2003 01/13/2004 01/14/2004 01/28/2004 01/28/2004 01/28/2004 01/28/2004 01/29/2004 02/04/2004
02/06/2004 02/10/2004
02/13/2004 02/13/2004 02/20/2004 02/20/2004 02/25/2004

10 MOTION by defendant for protective order (Attachments); Notice (hp) (Entered: 12/22/2003)
11 MOTION by defendant for partial summary judgment ; Memorandum in support (Attachments); Local Rule 56.1 statement of material facts as to which there is no genuine issue (Attachments); Notice (hp) (Entered: 12/22/2003)
12 MINUTE ORDER of 12/18/03 by Hon. Rebecca R. Pallmeyer : Filed defendant's motion for protective order. [10−1] Answer brief to motion due 01/14/04. Reply to answer brief due 01/28/04. Status hearing held and continued to 02/04/04 at 9:30 a.m. Plaintiff's motion for leave to withdraw appearance of Noelle C. Brennan is granted. [8−1] Mailed notice (hp) (Entered: 12/22/2003)
13 MINUTE ORDER of 12/18/03 by Hon. Rebecca R. Pallmeyer : Filed defendant's motion for partial summary judgment. [11−1] Answer brief to motion due 01/28/04. Reply to answer brief due 02/11/04. Mailed notice (hp) (Entered: 12/22/2003)
14 NOTICE by defendant's counsel M. Andrew McGuire of change of address (hp) Modified on 01/15/2004 (Entered: 01/15/2004)
15 RESPONSE by plaintiff to defendant's motion for protective order [10−1] (Attachment) (hp) (Entered: 01/15/2004)
16 REPLY BRIEF by defendant in support of its motion for protective order [10−1] (Attachment) (hp) (Entered: 01/29/2004)
17 MEMORANDUM by plaintiff in opposition to defendant's motion for partial summary judgment [11−1]; Notice (hp) (Entered: 01/29/2004)
18 RESPONSE by plaintiff to defendant's Local Rule 56.1 statement of material facts as to which there is no genuine issue [11−1] (hp) (Entered: 01/29/2004)
19 LOCAL RULE 56.1 Statement by plaintiff of additional facts requiring the denial of summary judgment (Attachments) (hp) (Entered: 01/29/2004)
20 DECLARATION of Kathleen Leaver (Attachment); Notice (hp) (Entered: 01/30/2004)
21 MINUTE ORDER of 2/4/04 by Hon. Rebecca R. Pallmeyer : Status hearing held. Motion for protective order [10−1] granted in part and denied in part. From year 2000 forward payroll records for single facility to be produced within 10 days. Other details requested need not be produced this time. Also within 10 days, defendant to produce other complaints of sexual harassment and retaliation form 2000 forward. Date for defendant's reply memorandum in support of summary judgment extended to 02/16/04. [11−1] Notices mailed by judge's staff (hp) (Entered: 02/09/2004)
22 MOTION by defendant for protective order and clarification regarding documents and information this Court ordered Catarpillar to produce (Attachment); Notice (ar) (Entered: 02/11/2004)
23 MINUTE ORDER of 2/10/04 by Hon. Rebecca R. Pallmeyer : Defendant's motion clarification is denied [22−2]. Plaintiff's response to motion for protective order [22−1] to be filed by 02/20/04. Reply to be filed 02/27/04. Ruling set for 03/01/04 at 9:00 a.m. [22−1]. Mailed notice (ar) (Entered: 02/11/2004)
24 RESPONSE by defendant to plaintiff EEOC's Local Rule 56.1 statement of additional facts [19−1]; Notice (hp) (Entered: 02/17/2004)
25 REPLY MEMORANDUM by defendant in support of its motion for partial summary judgment [11−1] (hp) (Entered: 02/17/2004)
26 RESPONSE by plaintiff to defendant's motion for protective order [22−1] and clarification; Notice (hp) (Entered: 02/23/2004)
60 ATTORNEY Appearance for Plaintiff Equal Employment Opportunity Commission by Ann M. Henry (hp, ) (Entered: 02/01/2005)
27 MINUTE ORDER of 2/25/04 by Hon. Rebecca R. Pallmeyer : By agreement of counsel, ruling on defendant's motion for protective order [22−1] set re−set to 03/02/04 at 9:30 a.m. Mailed notice (hp) (Entered: 02/27/2004)

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02/27/2004 03/01/2004 03/02/2004
03/02/2004
03/09/2004 03/12/2004 03/17/2004 03/26/2004 04/02/2004 05/17/2004 05/19/2004 06/28/2004 06/30/2004 09/22/2004
10/06/2004 10/06/2004 10/06/2004
10/20/2004

28 REPLY BRIEF by defendant in support of its motion for protective order [22−1]; Notice (cdy) (Entered: 03/01/2004)
29 MOTION by plaintiff for leave to file supplemental authority in opposition to defendant's motion for partial summary judgment (Attachment); Notice (hp) Modified on 03/03/2004 (Entered: 03/03/2004)
30 MINUTE ORDER of 3/2/04 by Hon. Rebecca R. Pallmeyer : Defendant's motion for protective order granted in part and denied in part. [22−1] Any anticipated communication with potential class members to be submitted in chambers, with copy to opposing counsel. Opposing counsel will have seven days to submit objections, if any. Court would then promptly issue a minute order providing direction with respect to proposed communications. Notices mailed by judge's staff (hp) Modified on 03/03/2004 (Entered: 03/03/2004)
31 MINUTE ORDER of 3/2/04 by Hon. Rebecca R. Pallmeyer : EEOC's motion for leave to file supplemental authority in opposition to defendant's motion for partial summary judgment is granted. [29−1] Defendant has seven (7) days to file additional material, if any. Mailed notice (hp) (Entered: 03/03/2004)
32 RESPONSE by defendant to EEOC's motion for leave to file supplemental authority in opposition to defendant's motion for partial summary judgment [29−1]; Notice. (hp) (Entered: 03/10/2004)
33 OBJECTIONS by defendant to EEOC's draft letter and questionnaire to be sent to Caterpillar's employees (Attachment); Notice (hp) (Entered: 03/16/2004)
34 RESPONSE by plaintiff to defendant's objections to EEOC's draft letter and questionnaire [33−1]; Notice (hp) (Entered: 03/19/2004)
35 OBJECTIONS by plaintiff EEOC to defendant's draft letter to employees (Attachment); Notice. (hp) (Entered: 03/29/2004)
36 RESPONSE by defendant to EEOC's objections to defendant's proposed letter to employees [35−1] (Attachments); Notice. (hp) (Entered: 04/05/2004)
37 JOINT MOTION by plaintiff to extend discovery ; Notice. (hp) (Entered: 05/20/2004)
38 MINUTE ORDER of 5/19/04 by Hon. Rebecca R. Pallmeyer : Filed joint motion to extend discovery. Motion is granted. [37−1] Fact discovery extended to 07/12/04. Mailed notice (hp) (Entered: 05/20/2004)
39 MOTION by the parties to extend discovery ; Notice. (hp) (Entered: 07/01/2004)
40 MINUTE ORDER of 6/30/04 by Hon. Rebecca R. Pallmeyer : Joint motion to extend discovery is granted. [39−1] Fact discovery is extended to 45 days after ruling on summary judgment motion. [11−1] Mailed notice (hp) (Entered: 07/01/2004)
41 MINUTE ORDER of 9/22/04 by Hon. Rebecca R. Pallmeyer : Entered Memorandum Opinion and Order. Status hearing set for 10/6/04 at 9:30 a.m. Caterpillar's motion for partial summary judgment is denied [11−1]. The EEOC will be permitted to proceed on its sexual harassment claims on behalf of the women wno worked with Robert Garcia at Caterpillar's Aurora Illinois facility. Mailed notice (gcy) (Entered: 09/23/2004)
42 ATTORNEY APPEARANCE for plaintiff EEOC by Laurie S. Elkin (hp) (Entered: 10/06/2004)
43 MOTION by plaintiff EEOC for reconsideration of the Court's order denying defendant's motion for summary judgment ; Memorandum in support; Notice. (hp) (Entered: 10/06/2004)
44 MINUTE ORDER of 10/6/04 by Hon. Rebecca R. Pallmeyer : Status hearing held. Defendant's response to plaintiff's motion for reconsideration to be filed by or on 10/20/04; reply 10/27/04; ruling set for 11/05/04 at 9:00 a.m. [43−1] Mailed notice (hp) (Entered: 10/06/2004)
45 OPPOSITION by defendant to EEOC's motion for reconsideration [43−1]; Notice. (hp) (Entered: 10/26/2004)

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10/27/2004 11/04/2004 11/05/2004 11/09/2004 11/09/2004
11/15/2004 11/18/2004
11/30/2004 12/07/2004 12/09/2004 12/10/2004
12/16/2004 12/17/2004
01/14/2005 02/01/2005 02/08/2005
02/15/2005 02/15/2005

46 REPLY by EEOC memorandum in support of its motion for reconsideration [43−1]; Notice. (hp) (Entered: 10/29/2004)
48 MOTION by defendant to compel (Attachments); Notice (cdy) (Entered: 11/10/2004)
47 MINUTE ORDER of 11/5/04 by Hon. Rebecca R. Pallmeyer : Ruling on plantiff's motion for reconsideration reset to 11/9/04 at 9:00 a.m. Telephoned notice (rbf) (Entered: 11/09/2004)
49 MINUTE ORDER of 11/9/04 by Hon. Rebecca R. Pallmeyer: Plaintiff's motion for reconsideration [43−1], is granted as outlined on the reverse side of this order. (See reverse of minute order.) Notices mailed by judge's staff (cdy) (Entered: 11/10/2004)
50 MINUTE ORDER of 11/9/04 by Hon. Rebecca R. Pallmeyer: Answer brief to motion to compel [48−1] due 11/30/04. Reply to answer brief due 12/07/04. Ruling on defendant's motion to compel [48−1] set for 12/10/04 at 9:30 a.m. Mailed notice (cdy) (Entered: 11/10/2004)
51 MOTION by defendant for certification of issue for appeal and stay of class−based discovery ; Memorandum in support; Notice. (hp) Modified on 11/23/2004 (Entered: 11/23/2004)
52 MINUTE ORDER of 11/18/04 by Hon. Rebecca R. Pallmeyer : Filed defendants' motion for certification of issue for appeal [51−1] and stay of class−based discovery. [51−2] Answer brief to motion due 12/09/04. Reply to answer brief due 12/16/04. Mailed notice (hp) (Entered: 11/23/2004)
53 RESPONSE by plaintiff EEOC in opposition to defendant's motion to compel [48−1]; Notice. (jmp) (Entered: 12/03/2004)
54 REPLY by defendant in support of its motion to compel [48−1] (Attachment). (hp) (Entered: 12/08/2004)
55 RESPONSE by plaintiff EEOC to defendant Caterpillar's motion for certification of issue for appeal [51−1] and stay of class−based discovery [51−2] (Attachment); Notice. (hp) (Entered: 12/13/2004)
56 MINUTE ORDER of 12/10/04 by Hon. Rebecca R. Pallmeyer : Status hearing set for 01/18/05 at 9:00 a.m. Defendant's motion to compel is granted [48−1] in part and entered and continued in part. Documents to be submitted to Judge Pallmeyer in chambers for in camera inspection. Mailed notice (hp) (Entered: 12/14/2004)
57 REPLY BRIEF by defendant in support of its motion for certification of issue for appeal [51−1], and stay of class−based discovery [51−2]; Notice. (hp) (Entered: 12/20/2004)
58 MINUTE ORDER of 12/17/04 by Hon. Rebecca R. Pallmeyer : On 12/10/04, the court entered and continued defendant's motion to compel [48−1]; having now reviewed the requested materials in camera, the court denies the motion without prejudice. (See reverse of minute order.) Notices mailed by judge's staff (hp) (Entered: 12/21/2004)
59 MINUTE entry before Judge Rebecca R. Pallmeyer : At the court's request, status set for 01/18/05 is stricken and reset to 02/01/05 at 9:00 a.m. (hp, ) (Entered: 01/19/2005)
61 MINUTE entry before Judge Rebecca R. Pallmeyer : Status set for 02/01/2005 stricken and reset to 02/08/2005 at 9:00 a.m. Docketing to mail notices. (hp, ) (Entered: 02/03/2005)
62 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held. Motion for certification of issue for appeal and stay of class−based discovery 51 continued to 2/15/2005 at 09:00 AM. No notices required, advised in open court. (hp, ) (Entered: 02/10/2005)
63 MOTION by Plaintiff Equal Employment Opportunity Commission to quash subpoena and for protective order; Exhibits. (rbf, ) Modified on 2/14/2006 (ym, ). (Entered: 02/16/2005)
64 NOTICE of Motion by Diane Ilene Smason for presentment of motion to quash and for protective order 63 before Honorable Rebecca R. Pallmeyer on 2/17/2005 at 09:00 AM. (rbf, ) (Entered: 02/16/2005)

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02/15/2005
02/17/2005 02/17/2005 02/18/2005
02/22/2005
02/22/2005 02/22/2005
02/22/2005 03/01/2005 03/01/2005 03/02/2005 03/03/2005 03/09/2005 03/09/2005 03/22/2005
04/21/2005 05/13/2005

65 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held. Motion for certification of issue for appeal and stay of class−based discovery 51 continued to 02/18/05 at 9:00 a.m. Plaintiff's counsel directed to propose a question for interlocutory review that, in counsel's view, accurately represets the dispute between the parties. No notice required, advised in open court. (hp, ) (Entered: 02/17/2005)
66 OPPOSITION by defendant Caterpillar Inc., in to EEOC'S motion to quash subpoena and protective order 63 ; Notice, Exhibit A. (hp, ) Modified on 3/10/2006 (ym, ). (Entered: 02/23/2005)
68 LETTER from defendant's counsel S. Leigh Jeter dated 02/17/05. (hp, ) (Entered: 02/25/2005)
67 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 2/18/2005. EEOC having provided the relevant information, the motion to quash subpoena 63 is granted; and motion for protective order [63−2] is denied. Mailed notice (hp, ) (Entered: 02/23/2005)
69 MINUTE entry before Judge Rebecca R. Pallmeyer : The order. The court certifies the following question for review by the court of appeals: In determining whether the claims in an EEOC complaint are within the scope of the discrimination allegedly discovering during the EEOC's investigation, must the court accept the EEOC's administrative determination concerning the alleged discrimination discovered during its investigation, or instead, may the court itself review wthe scope of the investigation? Judicial staff mailed notice (air, ) (Entered: 02/25/2005)
70 ORDER. Signed by Judge Rebecca R. Pallmeyer on 2/22/2005. No notice (air, ) (Entered: 02/25/2005)
71 MINUTE entry before Judge Rebecca R. Pallmeyer : Although the scope of the case is as yet uncertain, the court has determined that the case will proceed as a class action. The court therefore sustains certain objections to the parties' proposed letters to class members, and overrules other objections. Status hearing set for 3/22/2005 at 09:00 AM. Enter Order. Notices mailed by judge's staff (hp, ) (Entered: 03/01/2005)
72 ORDER 71 Signed by Judge Rebecca R. Pallmeyer on 2/22/2005: (hp, ) (Entered: 03/01/2005)
73 MOTION by Defendant Caterpillar Inc for protective order (las, ) (Entered: 03/02/2005)
74 NOTICE of Motion by Sheldon Leigh Jeter for presentment of defendant's motion for protective order 73 before Honorable Rebecca R. Pallmeyer on 3/3/2005 at 09:00 AM. (las, ) (Entered: 03/02/2005)
75 RESPONSE by EEOC to Defendant's Motion for protective order 73 (hp, ) (Entered: 03/04/2005)
76 MINUTE entry before Judge Rebecca R. Pallmeyer : Defendant's Motion for protective order 73 is withdrawn without prejudice pending negotiations. Mailed notice (hp, ) (Entered: 03/07/2005)
77 MOTION by Defendant Caterpillar Inc for substitution of counsel (gma, ) (Entered: 03/09/2005)
78 NOTICE of Motion by Jason M Torres for presentment of MOTION by Defendant Caterpillar Inc for substitution of counsel 77 before Honorable Rebecca R. Pallmeyer on 3/22/2005 at 09:00 AM. (gma, ) (Entered: 03/09/2005)
79 MINUTE entry before Judge Rebecca R. Pallmeyer: Status hearing held on 3/22/2005. Defendant's motion for substitution of counsel 77 is granted. M. Andrew McGuire is to substitute the appearance of Johna G. Anderson. Status hearing set for 6/2/2005 at 09:00 AM. Mailed notice (lcw) (Entered: 03/23/2005)
80 TRANSCRIPT of proceedings for the following date: 02/15/05; Before the Honorable Rebecca R. Pallmeyer (hp, ) (Entered: 04/26/2005)
81 ATTORNEY Appearance for Defendant Caterpillar Inc by Anne Elizabeth Duprey (hp, ) (Entered: 05/18/2005)

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06/01/2005 06/02/2005 08/16/2005
10/06/2005 10/28/2005 10/28/2005 10/31/2005 11/02/2005 11/02/2005 12/07/2005 01/13/2006 02/09/2006 02/09/2006 02/17/2006
02/24/2006 03/01/2006
03/16/2006 03/23/2006

83 OPINION from the USCA for the Seventh Circuit; Submitted 04/20/05; Decided 05/27/05 in USCA case no. 05−8006. (hp, ) (Entered: 06/09/2005)
82 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 6/2/2005. Status hearing set for 8/16/2005 at 09:00 AM. Mailed notice (etv, ) (Entered: 06/02/2005)
84 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 8/16/2005. Plaintiff expects to identify the bulk of class members within 30 days. Discovery ordered closed by 2/10/2006. Status hearing set for 10/6/2005 at 09:00 AM. Mailed notice (etv, ) (Entered: 08/16/2005)
85 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 10/6/2005. Status hearing set for 12/7/2005 at 09:00 AM. Mailed notice (etv, ) (Entered: 10/06/2005)
86 MOTION by Defendant Caterpillar Inc for protective order (Attachments: # 1 Text of Proposed Order)(Torres, Jason) (Entered: 10/28/2005)
87 NOTICE by Caterpillar Inc of Filing of Motion for Protective Order (Torres, Jason) (Entered: 10/28/2005)
88 RESPONSE by plaintiff to Defendant's Motion for Protective Order (Henry, Ann) Modified on 11/1/2005 (rbf, ). (Entered: 10/31/2005)
89 MINUTE entry before Judge Rebecca R. Pallmeyer : Motion by defendant Caterpillar Inc. for protective order 86 is granted. Enter Protective Order. (cem, ) (Entered: 11/04/2005)
90 PROTECTIVE Order Signed by Judge Rebecca R. Pallmeyer on 11/2/2005.(cem, ) (Entered: 11/04/2005)
91 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 12/7/2005. Status hearing set for 2/9/2006 at 08:45 AM. Mailed notice (etv, ) (Entered: 12/07/2005)
92 ATTORNEY Appearance for Defendant Caterpillar Inc by Christopher James DeGroff (DeGroff, Christopher) (Entered: 01/13/2006)
93 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 2/9/2006. Discovery close date extended to 3/15/2006. Status hearing set for 3/16/2006 at 09:00 AM. Mailed notice (etv, ) (Entered: 02/09/2006)
94 EXECUTIVE COMMITTEE ORDER:Case referred to Magistrate Judge Geraldine Soat BrownSigned by The Executive Committee on 2/9/2006. (vmj, ) (Entered: 02/13/2006)
95 MINUTE entry before Judge Geraldine Soat Brown: This matter having been referred to Magistrate Judge Geraldine Soat Brown for a settlement conference, an initial status hearing is hereby set before Magistrate Judge Brown on 2/24/06 at 9:00 a.m. in Courtroom 1812 for the purpose of setting a date for the settlement conference. Counsel for parties shall review Judge Brown's Standing Order for Settlement Conference before appearing for the initial status hearing. See www.ilnd.uscourts.gov//JUDGEBROWN. Mailed (vmj, ) (Entered: 02/22/2006)
96 MINUTE entry before Judge Geraldine Soat Brown : Status hearing held and continued to 3/1/2006 at 08:45 AM. Mailed notice (ntf, ) (Entered: 02/24/2006)
97 MINUTE entry before Judge Geraldine Soat Brown : Status hearing held and continued to 3/23/2006 at 10:30 AM. On that day, primary counsel for both sides shall meet and confer in Judge Brown's jury room to discuss whether the issues in dispute can be narrowed. Mailed notice (rbf, ) (Entered: 03/02/2006)
98 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 3/16/2006. Discovery close date extended to 4/18/2006. Status hearing set for 4/18/2006 at 09:00 AM. Mailed notice (etv, ) (Entered: 03/16/2006)
99 MINUTE entry before Judge Geraldine Soat Brown: Status hearing held. Off the record settlement conference held with counsel. The parties met to consider narrowing the issues. Counsel put on the record certain understandings that have been reached

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04/18/2006
06/14/2006 06/15/2006 06/15/2006 06/15/2006 06/19/2006 06/19/2006 06/19/2006
06/21/2006
07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/11/2006 07/13/2006

regarding narrowing the issues remaining in the case. Those understandings will be reflected on the record no later than 4/18/06. All matters relating to the referral of this action having been concluded, the referral is closed and the case is returned to the assigned judge. Mailed (vmj, ) (Entered: 03/24/2006)
100 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 04/18/2006. Plaintiff EEOC has leave to file within 14 days. Amended complaint adding a 13th Plaintiff. Defendant has leave to file dispositive motions. Parties invited to stipulate to filing oversized briefs. Status hearing set for 06/22/2006 at 09:00 AM. Mailed notice (ar, ) (Entered: 04/19/2006)
101 TRANSCRIPT of proceedings for the following dates: 02/24/2006 and 03/01/2006; Before the Honorable Geraldine Soat Brown (2 vols: 101−1 and 101−2) (vmj, ) (Entered: 06/15/2006)
102 MOTION by Defendant Caterpillar Inc for extension of time in which to file dispositiove motions (unopposed) (Bromet, Rebecca) (Entered: 06/15/2006)
103 NOTICE of Motion by Rebecca Pratt Bromet for presentment of motion for extension of time 102 before Honorable Rebecca R. Pallmeyer on 6/22/2006 at 09:00 AM. (Bromet, Rebecca) (Entered: 06/15/2006)
104 ATTORNEY Appearance for Defendant Caterpillar Inc by Rebecca Pratt Bromet (Bromet, Rebecca) (Entered: 06/15/2006)
105 MOTION by Plaintiff Equal Employment Opportunity Commission to withdraw as attorney Lauren Dreilinger (Henry, Ann) (Entered: 06/19/2006)
106 NOTICE of Motion by Ann M Henry for presentment of motion to withdraw as attorney 105 before Honorable Rebecca R. Pallmeyer on 6/22/2006 at 09:00 AM. (Henry, Ann) (Entered: 06/19/2006)
107 MINUTE entry before Judge Rebecca R. Pallmeyer: Defendant's unopposed motion for a 21−day extension of time in which to file dispositive motions 102 is granted to and including 7/11/06. Status hearing set for 6/22/06 is stricken. Status hearing set for 7/13/2006 at 9:00 a.m. Mailed (vmj, ) (Entered: 06/20/2006)
108 MINUTE entry before Judge Rebecca R. Pallmeyer : Plaintiff's motion for leave to withdraw counsel 105 is granted. Lauren G Dreilinger is granted leave to withdraw her appearance on behalf of plaintiff. John Hendrickson, Diane Smason, Laurie Elkin and Ann Henry remain as counsel for plaintiff. Mailed (vmj, ) (Entered: 06/22/2006)
109 MOTION by Defendant Caterpillar Inc for leave to file excess pages and statements of fact (Bromet, Rebecca) (Entered: 07/11/2006)
110 NOTICE of Motion by Rebecca Pratt Bromet for presentment of motion for leave to file excess pages 109 before Honorable Rebecca R. Pallmeyer on 7/17/2006 at 09:00 AM. (Bromet, Rebecca) (Entered: 07/11/2006)
111 MOTION by Defendant Caterpillar Inc for summary judgment (Bromet, Rebecca) Additional attachment(s) added on 7/13/2006 (vmj, ). (Entered: 07/11/2006)
112 NOTICE of Motion by Rebecca Pratt Bromet for presentment of motion for summary judgment 111 before Honorable Rebecca R. Pallmeyer on 7/17/2006 at 09:00 AM. (Bromet, Rebecca) (Entered: 07/11/2006)
113 NOTICE by Caterpillar Inc re MOTION by Defendant Caterpillar Inc for summary judgment 111 Paper Filing of Appendix (Bromet, Rebecca) (Entered: 07/11/2006)
114 RULE 56.1 Statement by Caterpillar Inc regarding motion for summary judgment 111 (Torres, Jason) (Entered: 07/11/2006)
115 MEMORANDUM by Caterpillar Inc in Support of motion for summary judgment 111 (Torres, Jason) (Entered: 07/11/2006)
116 MINUTE entry before Judge Rebecca R. Pallmeyer: Defendant's motion for leave to file oversize briefs and for leave to file additional statement of material fact 109 is granted. Response to defendant's motion for summary judgment 111 o be filed by or on 9/13/2006; reply 10/13/2006. (vmj, ) (Entered: 07/14/2006)

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08/21/2006 09/13/2006 09/13/2006 09/13/2006 09/13/2006 10/13/2006 10/13/2006 10/13/2006
10/13/2006 10/13/2006 10/16/2006 12/12/2006 12/12/2006 12/13/2006
08/09/2007
08/09/2007

117 NOTICE by Jason M Torres of Change of Address (Torres, Jason) (Entered: 08/21/2006)
118 MEMORANDUM by Equal Employment Opportunity Commission in Opposition to motion for summary judgment 111 (Attachments: # 1 Exhibit Exhibits 1−5# 2 Exhibit Exhibits 6−10# 3 Exhibit Exhibits 11−13)(Henry, Ann) (Entered: 09/13/2006)
119 Response to defendants RULE 56.1 Statement of material facts by Equal Employment Opportunity Commission regarding motion for summary judgment 111 (Henry, Ann) TEXT HAS BEEN MODIFIED BY CLERK'S OFFICE. Modified on 9/14/2006 (rbf, ). (Entered: 09/13/2006)
120 RULE 56 56(b)(3)(B) Statement by Equal Employment Opportunity Commission regarding motion for summary judgment 111 (Henry, Ann) (Entered: 09/13/2006)
121 NOTICE by Equal Employment Opportunity Commission re Rule 56 statement 120 , Rule 56 statement 119 , memorandum in opposition to motion 118 (Henry, Ann) (Entered: 09/13/2006)
122 RESPONSE by Defendant Caterpillar Inc to Rule 56 statement 120 to Plaintiff EEOC's Local Rule 56.1(b)(3)(B) Statement of Additional Facts (Torres, Jason) (Entered: 10/13/2006)
123 REPLY by Caterpillar Incin Support of MOTION by Defendant Caterpillar Inc for summary judgment 111 (Torres, Jason) (Entered: 10/13/2006)
124 APPENDIX reply to response to motion 123 by Caterpillar Inc Supplemental to Its Second Motion for Partial Judgment (Attachments: # 1 Exhibit TT Excerpts of Deposition of Roberto Flores# 2 Exhibit UU Excerpts of Second Deposition of Lillie Johnson# 3 Exhibit VV Unpublished Cases# 4 Exhibit WW Deposition Exhibits CAT 44 and CAT 121)(Torres, Jason) (Entered: 10/13/2006)
125 MOTION by Defendant Caterpillar Inc for leave to file excess pages a Reply Brief in Excess of Fifteen Pages (Torres, Jason) (Entered: 10/13/2006)
126 NOTICE of Motion by Jason M Torres for presentment of motion for leave to file excess pages 125 before Honorable Rebecca R. Pallmeyer on 10/19/2006 at 09:00 AM. (Torres, Jason) (Entered: 10/13/2006)
127 MINUTE entry before Judge Rebecca R. Pallmeyer: Defendant's unopposed motion for leave to file a reply brief in excess of fifteen pages 125 is granted. Mailed (vmj, ) (Entered: 10/17/2006)
128 MOTION by Defendant Caterpillar Inc to remove counsel Michael A. Warner and M. Andrew McGuire (Torres, Jason) Modified on 12/13/2006 (rbf, ). (Entered: 12/12/2006)
129 NOTICE of Motion by Jason M Torres for presentment of motion to substitute attorney 128 before Honorable Rebecca R. Pallmeyer on 12/18/2006 at 08:45 AM. (Torres, Jason) (Entered: 12/12/2006)
130 MINUTE entry before Judge Rebecca R. Pallmeyer: Defendant's motion to remove attorneys Michael A. Warner and M. Andrew McGuire as counsel of record 128 granted. Attorney Michael A. Warner is deceased and M. Andrew McGuire is no longer associated with the law firm of Seyfarth. All other attorneys of record for defendant shall remain. Mailed (vmj, ) (Entered: 12/14/2006)
131 MINUTE entry before Judge Rebecca R. Pallmeyer :Enter Memorandum Opinion and Order. For the reasons explained above, the court grants defendant's motion for summary judgment 111 as to plaintiff's retaliation claim on behalf of Diana Gomez, plaintiff's sexual harassment claims on behalf of Lillie Johnson and Roxanne Tucker, and plaintiff's claim for punitive damages on behalf of Wendy Hollenback−Smithburg. In all other respects, defendant's motion for summary judgment is denied. Status hearing set for 8/23/2007 at 9:00 a.m. Mailed (vmj, ) (Entered: 08/10/2007)
132 MEMORANDUM Opinion and Order Signed by Judge Rebecca R. Pallmeyer on 8/9/2007(vmj, ) (Entered: 08/10/2007)

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08/23/2007 09/06/2007
09/18/2007 09/25/2007 10/02/2007 10/18/2007 12/13/2007 12/17/2007
12/20/2007 12/20/2007 12/20/2007 01/03/2008
01/22/2008 01/23/2008 01/28/2008 01/28/2008

133 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held and continued to 9/6/2007 at 9:00 a.m. Defendant's oral motion to bifurcate trials is continued to 9/6/2007 at 9:00 a.m. Mailed notice. (srb,) (Entered: 08/23/2007)
134 MINUTE entry before Judge Rebecca R. Pallmeyer: Status hearing held on 9/6/2007. Defendant's oral motion to bifurcate trials is entered and continued. Plaintiff to file response by 9/20/2007; defendant to reply by 10/4/2007. Ruling on motion set for 10/11/2007 at 9:00 a.m., at which time the parties are directed to be prepared to set trial date(s). Mailed notice by judge's staff. (srb,) (Entered: 09/07/2007)
135 MINUTE entry before Judge Rebecca R. Pallmeyer : By agreement, briefing schedule regarding motion to bifurcate extended as follows: Plaintiff's response extended to 9/27/2007; reply extended to 10/11/2007; ruling set for 10/11/2007 stricken and reset to 10/18/2007 at 9:00. Mailed notice (hp, ) (Entered: 09/19/2007)
136 MINUTE entry before Judge Rebecca R. Pallmeyer :Status hearing set for 10/2/2007 at 09:00 AM. Mailed notice (etv, ) (Entered: 09/25/2007)
137 MINUTE entry before Judge Rebecca R. Pallmeyer :Status hearing held on 10/2/2007. Bench trial set for 2/11/2008 at 9:30. Final Pretrial Order due 1/14/2008. Mailed notice (etv, ) (Entered: 10/02/2007)
138 MINUTE entry before Judge Rebecca R. Pallmeyer :Defendant's oral motion to bifurcate trials is withdrawn by agreement. Mailed notice (etv, ) (Entered: 10/18/2007)
139 MINUTE entry before Judge Rebecca R. Pallmeyer :Status hearing set for 12/17/2007 at 09:00 AM. Mailed notice (etv, ) (Entered: 12/13/2007)
140 MINUTE entry before Judge Rebecca R. Pallmeyer : Status hearing held on 12/17/2007. Final Pretrial Order extended to 1/18/2008. Final Pretrial Order should consist of agreed statement of facts, list of witness, list of exhibits, marked with an indication whether there are objections, proposed voir dire questions, and set of preliminary jury instructions. Bench trial set for 2/11/2008 is stricken. Jury Trial set for 2/11/2008 at 9:30. Defendant's motion for separate trial/jury to be filed by or on 1/4/2008; response 1/11/2008; reply 1/16/2008. Status hearing set for 1/23/2008 at 9:00. Mailed notice (hp, ) (Entered: 12/18/2007)
141 MOTION by Defendant Caterpillar Inc for reconsideration of the Court's December 17, 2007 Order (Torres, Jason) (Entered: 12/20/2007)
142 NOTICE of Motion by Jason M Torres for presentment of motion for reconsideration 141 before Honorable Rebecca R. Pallmeyer on 1/2/2008 at 08:45 AM. (Torres, Jason) (Entered: 12/20/2007)
143 AMENDED NOTICE of Motion by Jason M Torres for presentment of motion for reconsideration 141 before Honorable Rebecca R. Pallmeyer on 1/3/2008 at 08:45 AM. (Torres, Jason) (Entered: 12/20/2007)
144 MINUTE entry before Judge Rebecca R. Pallmeyer :Motion hearing held. Defendant's motion for reconsideration of the court's December 17, 2007 order 141 granted. Bench Trial to proceed on 2/11/2008 at 9:30. Final Pretrial Order to be submitted with respect to first two claims to be tried only. Jury trial set for 2/11/2008 is stricken. Mailed notice (etv, ) (Entered: 01/03/2008)
145 PROPOSED Pretrial Order by Caterpillar Inc (Bromet, Rebecca) (Entered: 01/22/2008)
146 MINUTE entry before Judge Rebecca R. Pallmeyer :Status hearing held on 1/23/2008. Final Pretrial Conference set for 2/1/2008 at 2:00 PM, for ruling on any motions in limine or other evidentiary issues for which a ruling is necessary prior to trial. Mailed notice (etv, ) (Entered: 01/23/2008)
147 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine To Exclude Documents Regarding Judy Sawyer−Green Produced After the Close of Discovery (Henry, Ann) (Entered: 01/28/2008)
148 MOTION by Plaintiff Equal Employment Opportunity Commissionin limine To Exclude Testimony by Michael Brown Regarding Karon Lambert's Performance and His Opinion Thereof (Henry, Ann) (Entered: 01/28/2008)

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01/28/2008 01/28/2008 01/28/2008 01/29/2008 01/29/2008 01/31/2008 01/31/2008
01/31/2008 02/01/2008
02/06/2008 02/12/2008 02/28/2008 02/28/2008 03/03/2008 03/03/2008 03/13/2008 03/14/2008 03/17/2008

149 NOTICE of Motion by Ann M Henry for presentment of motion in limine 147 , motion in limine 148 before Honorable Rebecca R. Pallmeyer on 2/1/2008 at 02:00 PM. (Henry, Ann) (Entered: 01/28/2008)
150 MOTION by Defendant Caterpillar Incin limine to Exclude the Deposition Testimony of Tim Anderson as Designated by the EEOC (Attachments: # 1 Exhibit A)(Bromet, Rebecca) (Entered: 01/28/2008)
151 MOTION by Defendant Caterpillar Incin limine to Exclude Evidence Related to Judy Sawyer Green and Anne Marie Logan (Attachments: # 1 Exhibit A)(Bromet, Rebecca) (Entered: 01/28/2008)
152 MOTION by Defendant Caterpillar Inc to dismiss (Attachments: # 1 Exhibit A)(Torres, Jason) (Entered: 01/29/2008)
153 NOTICE of Motion by Jason M Torres for presentment of motion to dismiss 152 before Honorable Rebecca R. Pallmeyer on 2/1/2008 at 02:00 PM. (Torres, Jason) (Entered: 01/29/2008)
154 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant Caterpillar Incin limine to Exclude the Deposition Testimony of Tim Anderson as Designated by the EEOC 150 (Henry, Ann) (Entered: 01/31/2008)
155 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant Caterpillar Incin limine to Exclude Evidence Related to Judy Sawyer Green and Anne Marie Logan 151 (Attachments: # 1 Exhibit)(Elkin, Laurie) (Entered: 01/31/2008)
156 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant Caterpillar Inc to dismiss 152 (Henry, Ann) (Entered: 01/31/2008)
157 MINUTE entry before Judge Rebecca R. Pallmeyer :Final Pretrial Conference convened. Rulings on motions in limine made. Plaintiff EEOC's motions in limine [147, 148] granted without objection. Defendant's motion in limine to exclude the deposition testimony of Tim Anderson as designated by the EEOC 150 is denied. Defendant's motion in limine to exclude evidence 151 is denied. Defendant's motion to dismiss 152 is denied. Mailed notice (etv, ) (Entered: 02/01/2008)
158 MINUTE entry before Judge Rebecca R. Pallmeyer :Status hearing set for 2/12/2008 at 09:00 AM. Mailed notice (etv, ) (Entered: 02/06/2008)
159 MINUTE entry before Judge Rebecca R. Pallmeyer :Status hearing held on 2/12/2008. Bench trial reset to 3/13/2008 at 9:30. Mailed notice (etv, ) (Entered: 02/12/2008)
160 MOTION by Plaintiff Equal Employment Opportunity Commission for leave to file Motion In Limine (Attachments: # 1 Exhibit motion in limine# 2 Exhibit)(Elkin, Laurie) (Entered: 02/28/2008)
161 NOTICE of Motion by Laurie S. Elkin for presentment of before Honorable Rebecca R. Pallmeyer on 3/3/2008 at 08:45 AM. (Elkin, Laurie) (Entered: 02/28/2008)
162 MINUTE entry before Judge Rebecca R. Pallmeyer :Plaintiff's motion for leave to file motion in limine 160 granted. Plaintiff EEOC's motion in limine denied without prejudice. Mailed notice (etv, ) (Entered: 03/03/2008)
163 MOTION by Plaintiff Equal Employment Opportunity Commission in limine to exclude evidence related to Sandy Irvin's job performance after January 2004 (vmj, ) Attachment: (Exhibit) (Entered: 03/04/2008)
164 MINUTE entry before Judge Rebecca R. Pallmeyer:Trial begins bench.Bench Trial continued to 3/14/2008 at 9:30 a.m. Mailed (vmj, ) (Entered: 03/14/2008)
165 MINUTE entry before Judge Rebecca R. Pallmeyer :Bench trial held on 3/14/2008. Bench trial continued to 3/17/2008 at 9:30. Mailed notice (etv, ) (Entered: 03/14/2008)
166 MINUTE entry before Judge Honorable Rebecca R. Pallmeyer:Bench trial held on 3/17/2008. Bench trial continued to 3/18/2008 at 10:00. Mailed notice (etv, ) (Entered: 03/17/2008)

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03/18/2008 04/01/2008 04/07/2008 04/24/2008 04/24/2008 04/28/2008
05/05/2008 05/05/2008 05/05/2008 05/06/2008 05/06/2008 07/08/2008 07/08/2008 03/31/2009
06/18/2009
06/18/2009 06/18/2009 07/17/2009 07/20/2009

167 MINUTE entry before Judge Honorable Rebecca R. Pallmeyer:Bench trial held on 3/18/2008. Bench trial continued to April 7, 2008 at 9:30 a.m. Mailed notice (etv, ) (Entered: 03/18/2008)
168 PROPOSED Pretrial Order by Equal Employment Opportunity Commission (Henry, Ann) (Entered: 04/01/2008)
169 MINUTE entry before Judge Honorable Rebecca R. Pallmeyer:Bench trial held on 4/7/2008. Simultaneous post−trial memoranda to be submitted on or before 4/28/2008. Trial ends − Bench. Mailed (vmj, ) (Entered: 04/07/2008)
170 MOTION by Defendant Caterpillar Inc for extension of time for the Parties to Simultaneously File Their Trial Briefs (Unopposed) (Bromet, Rebecca) (Entered: 04/24/2008)
171 NOTICE of Motion by Rebecca Pratt Bromet for presentment of extension of time 170 before Honorable Rebecca R. Pallmeyer on 4/29/2008 at 08:45 AM. (Bromet, Rebecca) (Entered: 04/24/2008)
172 MINUTE entry before Judge Honorable Rebecca R. Pallmeyer: Defendant's unopposed motion for an extension of time for the parties to simultaneously file their trial briefs 170 granted to and including 5/5/2008. Mailed notice (etv, ) (Entered: 04/28/2008)
173 MOTION by Defendant Caterpillar Inc to strike Plaintiff's Prayer for Injunctive and Equitable Relief (Bromet, Rebecca) (Entered: 05/05/2008)
174 NOTICE of Motion by Rebecca Pratt Bromet for presentment of motion to strike 173 before Honorable Rebecca R. Pallmeyer on 5/8/2008 at 08:45 AM. (Bromet, Rebecca) (Entered: 05/05/2008)
175 RESPONSE by Equal Employment Opportunity Commissionin Opposition to MOTION by Defendant Caterpillar Inc to strike Plaintiff's Prayer for Injunctive and Equitable Relief 173 (Henry, Ann) (Entered: 05/05/2008)
176 MEMORANDUM by Equal Employment Opportunity Commission (Henry, Ann) (Entered: 05/06/2008)
177 TRIAL Brief (Post−Trial Brief) by Caterpillar Inc (Torres, Jason) (Entered: 05/06/2008)
178 NOTICE by Diane Ilene Smason of Change of Address (Smason, Diane) (Entered: 07/08/2008)
179 NOTICE by Ann M Henry of Change of Address (Henry, Ann) (Entered: 07/08/2008)
180 MINUTE entry before the Honorable Rebecca R. Pallmeyer: For reasons stated in the court's forthcoming opinion, Defendant's motion to strike Plaintiff's prayer for injunctive and equitable relief (173) is granted. Mailed notice (etv, ) (Entered: 03/31/2009)
181 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Enter Memorandum Opinion And Order. The court enters judgment in favor of Defendant on all counts. Accordingly, Plaintiff's request for injunctive and equitable relief is denied. (For further details see separate order.) Civil case terminated. Mailed notice (etv, ) (Entered: 06/18/2009)
182 MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 6/18/2009: Mailed notice (etv, ) (Entered: 06/18/2009)
183 ENTERED JUDGMENTon 6/18/2009: Mailed notice (etv, ) (Entered: 06/18/2009)
184 BILL of Costs (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bromet, Rebecca) (Entered: 07/17/2009)
185 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Plaintiff's objection to the defendant's bill of costs, if any, to be filed within 14 days; reply, if any, to be filed 7 days thereafter. Mailed notice (lcw, ) (Entered: 07/20/2009)

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08/03/2009 186 RESPONSE by Plaintiff Equal Employment Opportunity Commission to bill of costs 184 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Henry, Ann) (Entered: 08/03/2009)

 
 Docket Summary

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US Court of Appeals for the Seventh Circuit Case Summary

Court of Appeals Docket #: 05-8006 Nsuit: 0 Caterpillar, Inc v. EEOC Appeal from: United States District Court

Filed: 3/11/05

Lower court information: District: 0752-1 : Ordering Judge: Rebecca R. Pallmeyer, Judge

3/11/05 3/11/05 3/16/05
3/16/05 3/16/05 3/18/05
4/5/05 5/27/05

Petition for Permission to appeal pursuant to 28 U.S.C. 1292(b) docketed. (District Court case no. 03 C 5636). [05-8006] [0-0] (hard)
Disclosure Statement filed by attorney Jason M. Torres for the petitioner Caterpillar, Inc. [05-8006] [1837153-1] (hard)
ORDER: Filed clerk's notice to Respondent EEOC to file a response to CATERPILLAR'S PETITION FOR PERMISSION TO APPEAL PURSUANT TO 28 U.S.C. SECTION 1292(b). [0-0] DMF [05-8006] Response due 4/5/05 for EEOC. (amyd)
Disclosure Statement filed by Jennifer S. Goldstein for Respondent EEOC. [05-8006] [1837153-1] (amyd)
Filed motion by Respondent EEOC to extend time. [1838444-1] [05-8006] (amyd)
ORDER issued GRANTING motion to extend time to file response. [1838444-1] DMF [05-8006] The response to the Petition for Review is due on or before 4/5/05 for EEOC. (kell)
Filed Respondent EEOC opposition to Petitioner Caterpillar Inc petition for permission to appeal under 28 U.S.C. 1292(b). [05-8006] [1837153-1] (amyd)
Filed opinion of the court by Judge Posner. We GRANT leave to appeal, and proceed to answer her [Judge Pallmeyer's] question. If courts may not limit a suit by the EEOC to claims made in the administrative charge, they likewise have no business limiting the suit to claims that the court finds to be supported by the evidence obtained in the Commission's investigation. The existence of probable cause to sue is generally and in this instance not judicially reviewable. Circuit Judge Richard A. Posner, Circuit Judge Frank H. Easterbrook, Circuit Judge Ilana D. Rovner. [05-8006] [1837153-1] (jame)

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 EEOC Files Two Suits Against Caterpillar for Harassment at Illinois Faci...

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE August 13, 2003

CONTACT:

http://www.eeoc.gov/press/8-13b-03.html
Lauren Dreilinger EEOC Trial Attorney (312) 353-7303 Gordon Waldron EEOC Trial Attorney (312) 353-7525 John C. Hendrickson EEOC Regional Attorney (312) 353-8551 TTY: (312) 353-2421

EEOC Files Two Suits Against Caterpillar for Harassment at Illinois Facilities

Pictured are Charging Party Karon Lambert (left) and EEOC Chicago Trial Attorney Lauren Dreilinger (right). Ms. Lambert's sexual harassment case resulted in EEOC's litigation against Caterpillar's Aurora facility.
Federal Agency Challenges Racial and Sexual Harassment at Joliet and Aurora Plants
The U.S. Equal Employment Opportunity Commission (EEOC) today filed two employment discrimination lawsuits in federal court in Chicago against Caterpillar, Inc. under Title VII of the Civil Rights Act of 1964. In the suits, the EEOC separately alleges racial and sexual harassment at Caterpillar's facilities in Joliet and Aurora, Illinois, respectively.
Caterpillar is an international Fortune 100 company and the manufacturer of the well-known yellow Caterpillar bulldozers, earthmovers, trucks and other heavy construction equipment, with corporate headquarters and its principal manufacturing and assembly facility in Peoria, Illinois. Caterpillar's facility in Joliet has over 1,000 employees and there are over 2,000 employees at Aurora.
In the case involving Caterpillar's Joliet facility, the EEOC maintains that during 2000 and 2001 Caterpillar permitted the racial harassment of at least three African American employees (George Ervins, Stanley McCallum and Rickey McNeal) who worked in "Building C" of that facility. EEOC said that its administrative investigation which preceded the suit showed that, among other things, certain white employees made a practice of whistling at the African American employees as if they were dogs, and that management refused to act on complaints about the practice.
One of the Joliet employees who filed Charges with the Commission, Stanley McCallum, said, "Some of my co-workers and a supervisor repeatedly whistled at me like you would whistle at a dog. I thought it was really racially insulting and harassing. I was disappointed that, even after I complained about it, Caterpillar didn't discipline the harassers."
The EEOC said that, among the excuses Caterpillar management offered for the whistling at Black employees, was that one of the employees involved "had a sinus problem."

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EEOC Files Two Suits Against Caterpillar for Harassment at Illinois Faci...

http://www.eeoc.gov/press/8-13b-03.html

In the case involving the Aurora facility, EEOC alleges that a supervisor sexually harassed Safety Industrial Hygiene Supervisor Karon Lambert ("Lambert") and a class of women. EEOC also contends that Caterpillar retaliated against Lambert and other women for opposing the harassment. EEOC's investigation revealed that the sexual harassment at Aurora involved both sexually offensive propositions and comments and unwelcome inappropriate physical touching. According to EEOC, when women complained about the harassment they were fired.
"It's bad enough," Charging Party Lambert said, "that I and other women has to experience constant sexual harassment from our supervisor, but being fired for standing up for ourselves was just about as bad."
John Hendrickson, EEOC's Regional Attorney in Chicago, said, "The two suits we have filed today are evidence that harassment may remain a serious problem even for the world's premier employers – especially when they fail to act on complaints received. In these cases, some of the excuses given by management for not taking corrective action were virtually as insulting as the original harassment and compounded the problem, as did the company's rush to retaliate."
Hendrickson continued, "Employer's should learn from both of these cases that how they react after learning of claims or harassment may overshadow the harassment itself and make them liable for damages in a higher order of magnitude. Suffice it to say, Caterpillar did not do itself any favors in either of these situations."
Both EEOC lawsuits, which were filed after the agency's efforts to voluntarily conciliate the matters with Caterpillar proved futile, seek compensatory and punitive damages, as well as injunctions barring future discrimination and requiring Caterpillar to implement measures to prevent recurrences. Both are captioned EEOC v. Caterpillar, Inc. The Joliet case has been designated N.D. Illinois No. 03-C-5637, and the Aurora case has been designated N.D. Illinois No. 03-C-5636.
EEOC Chicago District Director John P. Rowe said, "These are cases in which Caterpillar was made aware that it had a problem, but failed to seize the opportunity to take prompt and effective action. Now EEOC and, ultimately, a judge and jury will be doing for the company what it could have done for itself. That these harassment cases may not involve conduct as widespread and outrageous as that in some other cases brought by EEOC, makes it all the more remarkable that Caterpillar let the problems fester until litigation became inevitable." Rowe added, "We trust that other employers will learn from this scenario that conscientious compliance efforts pay dividends and that there is no substitute for acting quickly and effectively whenever harassment crops up."
In addition to enforcing Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation, the EEOC enforces the Age Discrimination in Employment Act of 1967, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963, which prohibits gender-based wage discrimination; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities in the federal sector; Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments; and sections of the Civil Rights Act of 1991. Further information about the Commission is available on the agency's web site at www.eeoc.gov.
This page was last modified on August 13, 2003.

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