IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CRYSTAL G. HOWARD, ) 

) 

 Plaintiff, ) Case No. 11-cv-7905 

 ) 

v. ) Judge Robert M. Dow, Jr. 

 ) 

INLAND SBA MANAGEMENT ) 

CORPORATION, an Illinois corporation, and ) 

SOMERCOR 504, INC., an Illinois corporation, ) 

 ) 

 Defendants. ) 

MEMORANDUM OPINION AND ORDER 

 Plaintiff Crystal Howard worked at SomerCor 504, Inc. (“SomerCor”) from March 2004 

until September 2009. Plaintiff alleges that the company passed her over for a promotion 

because of her race and gender and that her boss sexually harassed her for more than two years. 

She further alleges that in retaliation for her complaints about the discrimination and harassment, 

the company demoted her, created a hostile work environment, and ultimately terminated her 

employment. Because Plaintiff technically was employed by Inland SBA Management 

Corporation (“Inland”), which provided SomerCor with its employees, Plaintiff has sued both 

companies for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 

 Before the Court are motions for summary judgment [62, 73], filed by Defendants 

SomerCor and Inland, respectively, which argue that Plaintiff has presented no genuine issue of 

material fact as to any Count and that Defendants are entitled to judgment as a matter of law. 

For the reasons stated below, the Court grants in part and denies in part Defendants’ motions for 

summary judgment [62, 73]. 
2 

I. Background 

 A. Statement of Facts 

 The Court has taken the relevant facts from the parties’ Local Rule (“L.R.”) 56.1 

statements. Local Rule 56.1 requires a party moving for summary judgment to submit a 

statement of material facts as to which the movant contends there is no genuine issue and entitles 

the movant to judgment as a matter of law. The rule permits a movant to file up to 80 separatelynumbered statements of undisputed facts. L.R. 56.1(a)(3). Both SomerCor and Inland have 

complied with this requirement of the Rule. The Rule also requires the non-movant (here, 

Plaintiff) to file a concise response to a movant’s statement of facts containing “any 

disagreement, specific references to the affidavits, parts of the record, and other supporting 

materials.” L.R. 56.1(b)(3)(A). Plaintiff has done that. 

 Regrettably, however, Plaintiff has not fully complied with other aspects of Local Rule 

56.1. To begin with, Plaintiff has not adhered to the Rule’s directive that she submit her own 

statement of up to 40 additional facts if Plaintiff wishes the Court to consider facts in addition to 

those set forth in the movants’ statements. L.R. 56.1(b)(3)(C). Instead, Plaintiff included an unnumbered, nearly 20-page “statement of facts” section in her opposition brief. The Rule is clear 

that this is an improper instrument and format by which to set out facts at summary judgment 

and is insufficient to put issues before the Court. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 

1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 2000). In addition, 

Plaintiff’s 20-page statement of facts far exceeds the “40 separately-numbered statements of 

additional facts” that the Rule permits. See L.R. 56.1(b)(3)(C). Finally, many of Plaintiff’s facts 

contain no citation to the underlying record, in violation of part (b)(3)(B) of the Rule. 
3 

 As the Seventh Circuit has stressed, facts are to be set forth in Rule 56.1 statements, and 

it is not the role of the Court to parse the parties’ exhibits to construct the facts. Judges are not 

“like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th 

Cir. 1991). “Nor are they archaeologists searching for treasure.” Jeralds ex rel. Jeralds v. 

Astrue, 2010 WL 4942161, at *7 (N.D. Ill. Dec. 8, 2010) (citing DiLeonardi, 181 F.3d 865, 867 

(7th Cir. 1999)). It simply is not the court’s job to sift through the record to find evidence to 

support a party’s claim. Davis v. Carter, 452 F.3d 686, 692 (7th Cir. 2006). Rather, it is “[a]n 

advocate’s job . . . to make it easy for the court to rule in [her] client’s favor . . . .” Dal Pozzo v. 

Basic Machinery Co., Inc., 463 F.3d 609, 613 (7th Cir. 2006). Because Plaintiff’s submissions 

on summary judgment miss the mark set out in Local Rule 56.1(b)(3)(c) by a wide margin, the 

Court will disregard the statement of facts contained in Plaintiff’s memorandum in opposition to 

the Defendants’ motions for summary judgment [84]. 

 Defendant SomerCor argues that many of Plaintiff’s responses to SomerCor’s L.R. 56.1 

Statement should be stricken because they violate the Rule by including facts and information 

that exceed the scope of an appropriate response. See Prewitt v. U.S., 2012 WL 5381281, *1 

(N.D. Ill. Oct. 31, 2012) (“District Courts are entitled to expect strict compliance with Local 

Rule 56.1” and “[w]hen a nonmovant fails to adhere to Local Rule 56.1(B), the Court may admit 

the movant’s 56.1 Statement and disregard the nonmovant’s submissions.”). For example, one 

of SomerCor’s undisputed facts states that “Howard’s performance evaluation dated July 1, 

2006, contained a supervisor comment which ‘stressed better portfolio management’ by Howard 

and encouraged her to ‘continue to upgrade day to day servicing actions.’” SomerCor L.R. 56.1 

Stmt ¶ 10. Rather than admit or deny the fact, Plaintiff responded: “Admitted. However, the 

evaluation reveals . . .” and then added new facts in an effort to provide context and supplement 
4 

the record. 

 The Court agrees with Defendant that some of Plaintiff’s responses arguably go beyond 

what fairly can be considered responsive and would have been more appropriate to convey in 

Plaintiff’s own L.R. 56.1 statement of up to 40 additional facts. But because Plaintiff achieved 

partial – and perhaps even substantial – compliance with this aspect of the Local Rule, the Court 

will exercise its discretion in the direction of leniency. Rather than analyzing each of the 39 

responses with which Defendants take issue to determine which (and to what extent) the 

responses exceed the bounds of “responsiveness,” the Court instead will consider the 39 replies 

to Plaintiff’s responses that Defendant SomerCor has submitted to the Court in the event that 

Plaintiff’s responses are not stricken. Although L.R. 56.1 does not permit replies, the Court is 

given wide latitude in interpreting and enforcing its local rules. See Chichon v. Exelon 

Generation Co., LLC, 401 F.3d 803, 809 (7th Cir. 2005) (“We review a district court’s decision 

concerning whether a litigant complied with a local rule, such as Local Rule 56.1, for an abuse of 

discretion.”). The Seventh Circuit has been clear that, although district courts have discretion to 

require strict compliance with Rule 56.1, “[i]t does not follow . . . that district courts cannot 

exercise their discretion in a more lenient direction: litigants have no right to demand strict 

enforcement of local rules by district judges.” Modrowski v. Pigatto, 712 F.3d 1166, 1169 (7th 

Cir. 2013). “To the contrary, unless the district court ‘enforces (or relax[es]) the rules unequally 

as between the parties,’ the decision ‘to overlook any transgression [of the local rules] is left to 

the district court’s discretion.” Id. (quoting Stevo v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011)). 

The Court concludes that admitting Defendant’s replies [98] is the equitable result here, 

particularly because SomerCor has only replied to 39 of Plaintiff’s responses, which is fewer 

than the number of responses to which SomerCor would have been entitled if Plaintiff had 
5 

complied strictly with L.R. 56.1 and appropriately submitted these 39 (arguably) additional facts 

in a separate document. Accordingly, the Court only has taken facts from SomerCor’s Statement 

of Facts (“SomerCor SOF”) [63], Inland’s Statement of Facts (“Inland SOF”) [75], Plaintiff’s 

Response to Inland’s Statement of Facts (“Pl. Response to Inland”) [85], Plaintiff’s Response to 

SomerCor’s Statement of Facts (“Pl. Response to Inland”) [86], and SomerCor’s Reply to 

Plaintiff’s Response to SomerCor’s Statement of Facts [98]. 

 With that said, it is still within the district court’s discretion to strictly enforce 

compliance with Rule 56.1 within the universe of facts that the Court will consider here. See 

Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 359 (7th Cir. 2009); Bordelon v. Chi. Sch. 

Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000). It is the function of the Court, with 

or without a motion to strike, to review carefully statements of material facts and to eliminate 

from consideration any argument, conclusions, and assertions that are unsupported by the 

documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry 

Smid Plumbing & Heating Co., Inc., 2006 WL 980740, *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts 

v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 

F. Supp. 2d 917, 920 n.1 (N.D. Ind. 2004). As discussed above, merely including facts in a 

responsive memorandum is insufficient to put issues before the Court. Midwest Imports, Ltd. v. 

Coval, 71 F.3d 1311, 1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 

2000). The Court’s scrutiny of material statements of facts applies equally to the party seeking 

summary judgment and the party opposing it. 

 In addition, Local Rule 56.1 requires that statements of facts contain allegations of 

material fact and that factual allegations be supported by admissible record evidence. See L.R. 

56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). Where a party improperly 
6 

denies a statement of fact by failing to provide adequate or proper record support for the denial, 

the Court deems that statement of fact to be admitted. Thus, any statements or responses that 

contain legal conclusions or argument, are evasive, contain hearsay or are not based on personal 

knowledge, are irrelevant, or are not supported by evidence in the record will not be considered 

by the Court in ruling on the summary judgment motions. Any paragraph or fact that is not 

supported by record evidence will be disregarded. 

 B. Facts 

Plaintiff Crystal Howard (“Howard”) is an African-American female. From March 2004 

until her termination on September 11, 2009, Howard worked at SomerCor. SomerCor is a nonprofit company that provides financing for small businesses. Although Howard was hired by 

(and worked at) SomerCor, she technically became an Inland employee in February 2005 when 

SomerCor and Inland entered into a contractual arrangement by which Inland provided all 

personnel and human resource services to SomerCor. Also in February 2005, Howard was 

promoted to director of portfolio management in SomerCor’s loan servicing department, a role 

which included managing the department itself. Howard’s supervisors were Mickey Maslic 

(“Maslic”), President of Inland, and David Frank (“Frank”), SomerCor’s executive director. 

 In July 2006, Howard’s performance evaluation “stressed better portfolio management,” 

but noted that Frank, Howard’s supervisor, was “very pleased with [Howard’s] performance 

from the past year” and rated her “commendable.” Howard received a pay increase at the time of 

the evaluation. Howard’s evaluation the following year, conducted by Maslic in June 2007, 

noted that Howard should focus on “tak[ing] control of the department” and elevating the 

department’s service to the highest level. Howard also received a pay increase with this 

evaluation. Howard’s June 2008 performance evaluation included comments by Howard that 
7 

reflected her desire for a promotion to assistant vice president or vice president, which she 

previously had discussed with Maslic and would require approval by SomerCor’s Board of 

Directors. Howard’s evaluation rated her “proficient,” and she received another pay increase. 

 In June 2008, SomerCor engaged The Preston Group, Inc. to conduct an independent 

audit of SomerCor’s operations to help SomerCor prepare for an upcoming audit by the Small 

Business Administration. The Preston Group prepared a report of their findings, which outlined 

twenty-four recommendations for the improvement of each of SomerCor’s departments, six of 

which concerned Howard’s servicing department. Lisa Preston, the Preston Group’s President, 

authored the report. According to Frank and Maslic, the Preston Group’s findings convinced 

them that the servicing department needed an overhaul and that Howard, while still an asset to 

SomerCor, was not the right leader for that department. 

 On July 25, 2008, SomerCor’s Board of Directors met and discussed, among other things, 

the Preston Group’s report and Howard’s promotion request. During the meeting, Frank told the 

Board that Lisa Preston had suggested to him that Howard be replaced as head of the servicing 

department. Frank expressed his agreement with Preston’s recommendation, as well as his view 

that the Board should decline Howard’s promotion request. As a result, the Board decided to put 

Howard’s promotion on hold. 

 On August 29, 2008, Frank and Maslic met with a former SomerCor employee, AfricanAmerican female Stephanie Day, over lunch in the hope of convincing Day to return to the 

company to manage the servicing department. Day previously had worked in SomerCor’s 

servicing department, but resigned in 2004 when SomerCor’s former president, Russel Lennich, 

hired Howard to replace her. Because of Day’s familiarity with the department and the 

experience she had gained since leaving the company, Frank and Maslic offered Day the position 
8 

of senior vice president and portfolio manager on September 8, 2008. Day accepted the offer the 

next day, and the parties agreed that she would start the job on October 6, 2008. 

 On September 9, 2008, Howard called Myra Smith in the company’s human resources 

department to lodge a complaint against Frank for sexual harassment and against both Frank and 

Maslic for racial and gender discrimination (“the September 2008 complaint”). Over the 

telephone, Smith advised Howard to submit a formal complaint to a different member of the 

human resources department, Barbara Rizzo. Howard submitted a written complaint to Rizzo 

that same day. In the complaint, Howard alleged that the company had discriminated against her 

by subjecting her promotion to the approval of the board of directors. According to Howard, 

white males, in the past, had been given promotions without the formal approval of the board. 

 According to Howard, this was not her first complaint to HR. Howard alleges that she 

first complained of sexual harassment to Myra Smith in May 2008, when she called Smith to 

report that Frank had asked her to spend the night with him in Las Vegas, prior to his departure 

for a business trip there. According to Howard, when Howard called Smith again to complain in 

September, Smith told her not to include that particular allegation in her written complaint to 

Rizzo; there was no need to re-allege it, because HR was already investigating it. Consequently, 

the September 2008 complaint made no mention of the sexual harassment complaint that 

Howard alleges to have made verbally to Smith. Smith denies that Howard called and 

complained to her in May 2008, and therefore, also denies telling Howard not to include a sexual 

harassment allegation in her memo to Rizzo. According to Smith, Howard’s 2008 complaint was 

Howard’s first and only complaint that Smith fielded. 

 On September 12, 2008, the human resources department contacted Howard to set up a 

time to discuss her complaint. Nora O’Connor, Inland’s director of human resources, conducted 
9 

the investigation and met with Howard on September 17, 2008. O’Connor also interviewed 

Frank, Maslic, and Terry Boston, Howard’s colleague and friend in the servicing department. 

The investigation “revealed that the Preston Audit opened Maslic and Frank’s eyes regarding the 

Servicing Department.” It also revealed that the white males about whose promotions Howard 

complained were differently-situated than Howard in that they were recent hires by the company, 

who received title changes but not pay increases, and who were not elevated to an officer title. 

On September 23, 2008, O’Connor concluded her investigation and informed Howard of her 

finding of “no discrimination.” 

 The next day, September 24, 2008, Maslic informed Howard that Day had been hired as 

the servicing department’s new manager and that Howard would be demoted (though her pay 

would not decrease). Upset at the news, Howard packed up a portion of the belongings in her 

office and brought them home. Maslic and Frank view this event as the first of many behavioral 

incidents that exemplified Howard’s refusal to work cooperatively under Day and ultimately 

justified their decision to terminate Howard. According to Howard, she packed up her 

belongings not as a sign of protest or unwillingness to work as Day’s subordinate, but because 

she believed that Day was hired in retaliation for her sexual harassment and discrimination 

complaints. Because Howard suspected that her termination may be looming, she wanted to take 

her heavier belongings home so that she did not have to carry them all on the train on her last 

day. 

 On October 16, 2008, Howard filed charges of sexual harassment and gender and race 

discrimination with the EEOC. Howard ultimately was fired from SomerCor on September 11, 

2009. As discussed in greater detail below, Defendants maintain that Howard was fired because 

of poor job performance and an unwillingness to work agreeably under Day. Howard alleges 
10 

that Defendants fired her in retaliation for complaining about sexual harassment and 

discrimination. 

 As mentioned, Howard maintains that the September 2008 complaint was not her first 

sexual harassment and discrimination complaint to SomerCor’s human resources department. 

Howard contends that she first reported these same issues via telephone to Myra Smith in May 

2008, an event that Howard insists precipitated all of the negative consequences that followed – 

including the denial of her promotion request, Day’s hiring, Howard’s demotion, and, ultimately, 

Howard’s termination. Howard alleges that Frank consistently sexually harassed her from 

January 2006 until September 2008. Specifically, Howard says that Frank made weekly 

“unwelcome comments” regarding Howard’s appearance, spoke to her using sexual overtones, 

frequently rubbed her arm, would put his arm around her or hug her, and jokingly referred to 

Howard and the other women in the servicing department (Terry Boston and Nicole Haraway) 

as his “servicing girls.” Although Howard never asked Frank to stop rubbing her arm, or 

hugging her, she says that she consistently pulled away from him when he would do it. 

According to Boston, at some point she and Howard expressed their opinion to Frank that his use 

of the term “servicing girls” was inappropriate, but he continued to use the term even after that 

conversation. Howard never asked Frank to stop making comments about her appearance. 

Howard contends that Frank had been sexually harassing her in this fashion since January 2006, 

but she says that it was Frank’s insistence that Howard spend the night with him in his hotel 

room on a business trip to Las Vegas that prompted her finally to complain about any of it. 

 Defendants contest that Howard made this complaint to Smith in May 2008 (“the May 

2008 complaint”). Smith testified at her deposition that the September 2008 complaint was the 

first and only complaint she ever received from Howard. However, Terry Boston testified at her 
11 

deposition that Boston witnessed (and was physically present in Howard’s office when) Howard 

made the May 2008 call to Smith to complain about Frank’s sexual harassment and racial and 

gender discrimination concerning the fact that her promotion to vice president would need Board 

approval. 

 Howard maintains that SomerCor refused to promote Howard, hired Day, demoted 

Howard as head of the servicing department, and ultimately fired Howard in retaliation for 

making the May 2008 complaint. Defendants dispute this contention and submit that Day was 

hired (and Howard was demoted) solely because the Preston report convinced Frank and Maslic 

that the servicing department needed new leadership, and that Howard was fired because of 

subpar work performance. 

 Despite Defendants’ denials regarding the existence of the May 2008 complaint and the 

alleged retaliatory motives born therefrom, Stephanie Day’s deposition testimony and affidavit 

provide substantial corroboration of Howard’s allegations. According to Day, Frank and Maslic 

first tried to lure Day back to SomerCor to replace Howard in the summer of 2008, though she 

cannot seem to recall the exact date of their first communication with her. Following their call to 

Day, she met with Frank and Maslic over lunch to discuss the possibility of her return to 

SomerCor to run the servicing department. According to Day, at this lunch meeting both men 

were furious that Howard had complained about sexual harassment and race and gender 

discrimination. Though they also mentioned the poor audit results, Frank and Maslic made it 

clear to Day that they wanted Howard “gone” because she had complained. Day says she also 

met with Frank and Maslic a second time that summer to continue their discussion. Again, Day 

says, the men displayed anger over Howard’s complaint of sexual harassment and gender and 
12 

race discrimination and expressed their desire to fire her as a consequence. Defendants and 

Howard agree that one of these lunches took place on August 29, 2008. 

 According to Defendants, Howard’s work suffered tremendously once Day took over the 

servicing department on October 6, 2008. Day, Frank, and Maslic met with Day almost weekly 

to discuss Howard’s performance-related issues during the entirety of Howard’s tenure working 

under Day. A memorandum to Frank and Maslic, submitted by Day on July 30, 2009, ostensibly 

reflects Day’s view that Howard was rebellious, a sub-standard employee, appeared to 

purposefully make errors in her work, and should be terminated. Day’s affidavit and deposition 

testimony, however, reveal that she, Maslic, and Frank went to extraordinary lengths to create an 

environment where Howard could not succeed so that Maslic and Frank could create a paper trail 

that they could use to justify her termination. According to Day, Frank and Maslic required her 

to document each and every one of Howard’s missteps, no matter how trivial or inconsequential. 

Day says that Howard’s “performance-related” firing was a sham that she helped orchestrate so 

that Maslic and Frank could fire Howard in retaliation for Howard’s harassment and 

discrimination complaints. According to Howard, Frank and Maslic refused to speak with her 

after she filed her complaint with the EEOC. She submits that she kept the EEOC investigator 

assigned to investigate her complaint, Shawn Hayes, abreast of the way in which Day, Frank, 

and Maslic treated her as their hostility towards her evolved and escalated, and that she relayed 

to Hayes her belief that Frank and Maslic had hired Day to ultimately terminate her. Among 

other things, Howard maintains that Day would give her an assignment, which she would 

complete as directed, only to have Day accuse her of failing to follow instructions. Further, 

Howard submits that Day and Frank falsified servicing department meeting minutes to include 

phantom comments that they attributed to Howard in order to make her look uncooperative or 
13 

rebellious. Day allegedly instituted a rule – which only applied to Howard – that Howard was 

not allowed to close the door to her office. Contrary to Defendants’ assertions about her job 

performance, Howard maintains that – because she believed Day was hired to ultimately 

terminate her, and suspecting that she would be subject to heightened scrutiny – she actually 

worked harder and smarter than ever before. 

 On July 31, 2009, Frank and Maslic reported to SomerCor’s Board of Directors that 

Howard was performing poorly. In late August, Frank and Maslic directed Day to terminate 

Howard, which she did on September 11, 2009. On November 12, 2009, Howard filed another 

complaint with the EEOC, alleging that SomerCor fired her in retaliation for her previous 

harassment and discrimination complaints. 

II. Summary Judgment Standard

Summary judgment is proper if “the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). To avoid summary judgment, the opposing party must go beyond the pleadings and “set 

forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250 (1986) (quotation omitted). A genuine issue of material fact exists if 

“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

at 248. The party seeking summary judgment has the burden of establishing the lack of any 

genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

Summary judgment is proper against “a party who fails to make a showing sufficient to establish 

the existence of an element essential to that party's case, and on which that party will bear the 

burden of proof at trial.” Id. at 322. The party opposing summary judgment “must do more than 

simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. 
14 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a 

scintilla of evidence in support of the [opposing] position will be insufficient; there must be 

evidence on which the jury could reasonably find for the [opposing party].” Anderson, 477 U.S. 

at 252. 

No heightened standard of summary judgment exists in employment discrimination 

cases, nor is there a separate rule of civil procedure governing summary judgment in 

employment cases. Alexander v. Wisconsin Dept. of Health and Family Servs., 263 F.3d 673, 

681 (7th Cir. 2001) (citing Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 

1997)). However, intent and credibility frequently are critical issues in employment cases that in 

many instances are genuinely contestable and not appropriate for a court to decide on summary 

judgment. See id. The Court must resolve all evidentiary conflicts in Plaintiff’s favor and 

accord her the benefit of all reasonable inferences that may be drawn from the record. O’Leary 

v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2013). “It is not for the courts at summary 

judgment to weigh evidence or determine credibility of [a witness’s] testimony.” Id. (quoting 

Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010). Nevertheless, summary 

judgment in favor of the defendant “is hardly unknown or, for that matter rare, in employment 

discrimination cases.” Wallace, 103 F.3d at 1396.

III. Discussion 

Plaintiff alleges that SomerCor and Inland committed four distinct violations of Title VII. 

Count I alleges gender and racial discrimination based on the fact that her promotion request 

required Board approval, even though several white males had been promoted in the past without 

the involvement of the Board. Count II alleges that Defendants retaliated against her for 

complaining about this discrimination and Frank’s sexual harassment. Count III alleges sexual 
15 

harassment. Count IV alleges that Frank, Maslic, and Day created a hostile work environment in 

retaliation for her internal and EEOC complaints. 

A. Race and Gender Discrimination 

 Plaintiff alleges that Defendants violated Title VII by subjecting her promotion request to 

the approval of SomerCor’s Board of Directors. Because the company had promoted white 

males in the past without the Board’s involvement, she believes that this prerequisite applied to 

her because she is a female and an African-American. Title VII prohibits discrimination in 

employment: “It shall be an unlawful employment practice for an employer to . . . discriminate 

against any individual with respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s race, color, religion, sex, or national origin.” 42 

U.S.C. § 2000e-2(a)(1). To prove a case of discrimination under Title VII, a plaintiff may show 

discrimination under either the “direct” or “indirect” methods of proof. Atanus v. Perry, 520 

F.3d 662, 671-72 (7th Cir. 2008) (reiterating that the direct method may be proven with either 

direct or circumstantial evidence and that the indirect method proceeds under the burden-shifting 

rubric set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973)); see also 

Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007). 

 Under the direct method of proof, the plaintiff may introduce either direct or 

circumstantial evidence to create a triable issue as to whether the adverse employment action was 

motivated by a discriminatory intent. Id.; see also Isbell v. Allstate Ins. Co., 418 F.3d 788, 794 

(7th Cir. 2005); Essex v. United Parcel Serv. Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). In other 

words, the plaintiff must show either “an acknowledgement of discriminatory intent by the 

defendant or circumstantial evidence that provides the basis for an inference of intentional 

discrimination.” Dandy v. United Parcel Service, Inc., 388 F.3d 263, 272 (7th Cir. 2004) (citing 
16 

Gorence v. Eagle Foods Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001)). A plaintiff may prevail 

under the direct method of proof by “constructing a ‘convincing mosaic’ of circumstantial 

evidence that ‘allows a jury to infer intentional discrimination by the decision-maker.” Jordan v. 

City of Gary, Ind., 396 F.3d 825, 832 (7th Cir. 2005) (quoting Rhodes v. Ill. Dept. of Transp., 

359 F.3d 498, 504 (7th Cir. 2004)). 

Plaintiff has not identified any evidence to support a claim under the direct method of 

proof. Defendants did not admit or acknowledge any discriminatory intent, and Plaintiff devotes 

only the final paragraph of her 37-page opposition brief to her claim of racial and gender 

discrimination. In that lone paragraph, Plaintiff argues that: 

a jury may reasonably conclude that Frank and Maslic chose Day [to replace and 

ultimately fire Howard] because she is African American and, given that she had 

been replaced by Howard previously at SomerCor, may hold a grudge and do 

their bidding. The question one asks is why couldn’t Frank or Maslic themselves 

terminate Howard. They hired an African American whom they thought would 

be compliant with their termination demand because it would not appear 

discriminatory. 

Pl. Opp. Br. at 36-37. Although Plaintiff does not specify the method of proof (direct vs. 

indirect) by which she is attempting to establish gender and race discrimination, Plaintiff seems 

to be arguing that the hiring of an African-American female to fire another African-American 

female supports a reasonable inference that Frank and Maslic had (and were trying to conceal) a 

discriminatory motive for terminating Howard. The problem with this argument is that Howard 

does not allege that she was fired because of her race or gender. Rather, Howard alleges that 

Frank and Maslic discriminated against her by requiring Board approval before promoting her, 

despite the fact that white males who had been promoted in the past did not have to clear this 

hurdle. This is the first time that Plaintiff has tried to link her allegation of racial and gender 

discrimination to her termination. Previously, in fact, Plaintiff explicitly admitted that 
17 

Defendants did not want to terminate Howard because of her race or gender but because “she had 

brought sexual harassment charges against Frank.” Pl. Resp. to SomerCor 56.1 Stmt. ¶ 18. 

 Further, the record is void of evidence suggesting that Frank and Maslic actively sought 

to replace Howard with an African-American female generally, regardless of her qualifications, 

or that Day was unfit for the position. To the contrary, the undisputed evidence reveals that 

Defendants hired Day because she had previously led SomerCor’s servicing department and 

since had gained valuable outside experience at Banco Popular, and Plaintiff does not challenge 

Day’s qualifications. To the extent that Plaintiff alleges that Defendants hired Day as a reaction 

to Howard’s HR complaint regarding race and gender discrimination (and sexual harassment), 

that allegation cannot support a claim for gender and race discrimination itself, but instead may 

support a Title VII retaliation claim, which Plaintiff has alleged in Count II. 

 Moreover, neither Plaintiff nor the other African-American females in the servicing 

department, all of whom were deposed, could point to a single instance of racial or gender 

discrimination that they witnessed at SomerCor. Accordingly, Plaintiff falls far short of pointing 

to strong enough circumstantial evidence to support an inference that she was intentionally 

discriminated against on the basis of her race or gender. Because Plaintiff has not put forth any 

direct evidence of discrimination, she must proceed under the indirect method. See Antonetti v. 

Abbott Laboratories, 563 F.3d 587, 591 (7th Cir. 2009) (“A plaintiff may prove illegal 

discrimination either directly or indirectly.”). 

The indirect method is governed by the McDonnell Douglas burden-shifting framework, 

pursuant to which a plaintiff must present evidence tending to show that: (1) she is a member of 

a protected class; (2) she performed reasonably on the job in accord with his employer’s 

reasonable expectations; (3) she suffered an adverse employment action; and (4) similarly 
18 

situated employees outside of her protected class were treated more favorably. 411 U.S. 792, 

802-04 (1973); see also Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696 (7th Cir. 2006). If she 

does so, then the burden shifts to the employer “to introduce a legitimate, nondiscriminatory 

reason for the employment action.” Naficy v. Ill. Dep’t of Human Serv., 697 F.3d 504, 511 (7th 

Cir. 2012). If the employer meets that burden of production, then the burden shifts back to the 

plaintiff to provide evidence that the employer's reason was pretextual. Id. at 511–12.

 Here, Plaintiff has failed to demonstrate that similarly situated employees outside of her 

protected class were treated more favorably. “[T]he similarly-situated inquiry is flexible, 

common-sense, and factual. It asks essentially, are there enough common features between the 

individuals to allow a meaningful comparison?” Coleman v. Donahoe, 667 F.3d 835, 841 (7th 

Cir. 2012) (internal citation omitted). “There must be sufficient commonalities on the key 

variables between the plaintiff and the would-be comparator to allow the type of comparison 

that, taken together with the other prima facie evidence, would allow a jury to reach an inference 

of discrimination.” Id. “In other words, the proposed comparator must be similar enough to 

permit a reasonable juror to infer, in light of all the circumstances, that an impermissible animus 

motivated the employer’s decision.” Id. “Similarly situated employees must be directly 

comparable to the plaintiff in all material respects, but they need not have identical employment 

files.” Good v. Univ. of Chicago Med. Ctr., 673 F.3d 670, 675 (7th Cir. 2012). 

 Although Defendants admit that six white males at SomerCor have been promoted 

without board approval, Plaintiff has not demonstrated nearly enough commonalities to allow for 

a meaningful comparison to them. “In the usual case a plaintiff must at least know that the 

comparators (1) dealt with the same supervisor, (2) were subject to the same standards, and (3) 

engaged in similar conduct without such differentiating or mitigating circumstances as would 
19 

distinguish their conduct or the employer’s treatment of them.” Coleman, 667 F.3d at 846 

(internal quotations omitted). Here, the record is devoid of any evidence (or allegation) that the 

white males at issue dealt with the same supervisor, were subject to the same standards, or 

performed similarly to defendant in their jobs at SomerCor. And what the record does reflect 

suggests that Plaintiff, in fact, was not similarly situated. First, Howard’s deposition testimony 

reveals that none of the males had been promoted to Vice President. Second, all of the males had 

been promoted in prior years. (Howard does not specify when they were promoted, just that they 

were promoted in the past). Next, all of the men worked in different departments (presumably 

performing different tasks and under different supervisors.) Pl. Resp. to SomerCor 56.1 Stmt. ¶ 

42. In fact, Plaintiff admitted in response to interrogatories that “her position and her job 

responsibilities were unique and did not identify any similarly situated non-African Americans or 

males who were treated more favorably than her.” Id. ¶ 72. The small servicing department that 

Howard managed consisted of just three employees, Howard and two subordinates. Pl. Resp. to 

SomerCor 56.1 Stmt. ¶ 42. During the entire time that Howard worked at SomerCor, no one 

from the servicing department was promoted. SomerCor Reply to Pl. Resp. ¶ 42. Additionally, 

Plaintiff was one of the four highest paid employees in the company and made more money than 

all of the white males about whom she complained. Id. ¶ 41. Finally, the Preston audit 

significantly differentiates Howard from those promoted in prior years. Howard requested to be 

considered for a promotion during her performance evaluation on June 13, 2008. Id. ¶ 41. The 

Preston audit was scheduled to take place from June 16-20, 2008, and the Board meeting was 

scheduled for July 25, 2008. Id. ¶ 15. SomerCor commissioned the Preston audit because it 

learned that the Small Business Administration also was going to be conducting an audit. Id. ¶ 

14. Without more information about the white males’ job description and performance, this fact 
20 

alone prevents a meaningful comparison between Howard and anyone who had been promoted 

in prior years; in this particular year, outside evaluators were about to conduct an objective 

assessment of each department and manager and diagnose any deficiencies observed. It makes 

sense that SomerCor would want to delay promotion decisions until those audits took place and 

the results were studied. In fact, the record suggests that, with these audits looming, no 

promotions were made in the summer of 2008. In the end, we know the names of six white men 

from other departments who received promotions to jobs other than vice president without Board 

approval, but we know nothing else about them. Accordingly, the record does not contain nearly 

enough information to create a triable issue of fact in regard to whether Plaintiff and the white 

males about whom she complains were similarly situated. 

 Furthermore, even assuming that a meaningful comparison could be drawn between 

Plaintiff and the white males, the Preston Audit constitutes a legitimate nondiscriminatory reason 

for SomerCor’s promotion decisions with respect to Howard. Howard formally made her 

promotion request at her yearly performance review on June 13, 2008. An outside auditor was 

scheduled to evaluate Howard, along with the rest of the company, just three days later. And the 

Board was scheduled to discuss the results of that audit the following month. In light of those 

circumstances, it was reasonable for Howard’s supervisors to submit her request for the Board’s 

consideration. And the Preston audit results provided SomerCor with ample justification for 

denying Howard’s promotion to vice president. During the audit, the Preston Group observed 

that Howard lacked knowledge of SBA servicing requirements and lacked attention to detail and 

a sense of urgency, which resulted in non-compliance with certain SBA regulations. SomerCor 

Reply to Pl. Resp. ¶ 18. Consequently, Lisa Preston recommended to SomerCor that a more 

detail-oriented, hands-on leader in the servicing department was required to ensure compliance 
21 

with SBA regulations, and that the company consider sweeping personnel changes in the 

servicing department. SomerCor Reply to Pl. Resp. ¶ 16. Defendants, therefore, have met their 

burden of establishing a legitimate nondiscriminatory reason for its decisions regarding 

Howard’s promotion request. Plaintiff, however, is unable to point to any evidence that 

contradicts Lisa Preston’s recommendation or suggests that SomerCor’s purported justifications 

were pretextual. 

 In sum, Plaintiff has failed to introduce either direct or indirect evidence to create a 

triable issue as to whether SomerCor’s decision to subject Howard’s promotion to Board 

approval, or the denial of the promotion itself, was motivated by a discriminatory intent. For the 

reasons discussed, the Court grants Defendants’ motion for summary judgment as to Count I. 

B. Retaliation 

 Plaintiff alleges that Defendants violated Title VII by (1) declining to promote her to vice 

president, (2) demoting her to servicing analyst and hiring Day to replace her as head of the 

servicing department, and (3) ultimately firing her, all in retaliation for her complaints to the 

company’s human resources department and the EEOC. Because Defendants’ position is that 

Plaintiff first complained on September 9, 2008 (and not in May 2008, as Plaintiff contends), 

Defendants argue that the decisions not to promote Howard and to hire Day as Howard’s 

replacement could have not been retaliatory since Defendants made these decisions prior to her 

complaint. And they argue that their decision to terminate Howard’s employment was motivated 

solely by her unsatisfactory job performance and not at all by her complaints to HR or the 

EEOC. 

 Under the anti-retaliation provision of Title VII, it is unlawful for an employer to 

“discriminate against” an employee “because he has opposed any practice made an unlawful 
22 

employment practice” by the statute or “because he has made a charge, testified, assisted, or 

participated in” a Title VII “investigation, proceeding, or hearing.” Brown, 499 F.3d at 684 

(quoting 42 U.S.C. § 2000e-3(a)). “A plaintiff may prove retaliation by using either the direct 

method or the indirect, burden-shifting method.” Tomanovich v. City of Indianapolis, 457 F.3d 

656, 662 (7th Cir. 2006) (internal quotations and citations omitted). 

 “Under the direct method, a plaintiff must show that (1) he engaged in statutorily 

protected activity; (2) he suffered an adverse action taken by the employer; and (3) there was a 

causal connection between the two.” Tomanovich, 457 F.3d at 663 (quotations and citations 

omitted). Alternatively, under the indirect approach, in order to establish a prima facie case for 

retaliation, the employee must show that (1) after filing a charge, the employee was subject to 

adverse employment action; (2) at the time, the employee was performing his job satisfactorily; 

and (3) no similarly situated employees who did not file a charge were subjected to an adverse 

employment action. See Hudson v. Chicago Transit Auth., 375 F.3d 552, 560 (7th Cir. 2004). 

“‘If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to 

present evidence of a non-discriminatory reason for its employment action.’” Tomanovich, 457 

F.3d at 663 (quoting Adusumilli v. City of Chicago, 164 F.3d 353, 362 (7th Cir. 1998)). Then, if 

the employer presents evidence of a non-discriminatory reason for its employment action, “‘the 

burden shifts back to the plaintiff to demonstrate that the employer’s reason is pre-textual.’” Id.

(quoting Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 903 (7th Cir. 2005)). 

 Defendants do not dispute that Howard’s purported complaints to HR and the EEOC 

constitute protected activities, but argue that Plaintiff did not suffer any adverse employment 

actions and that, if she did, there was no causal link between the two. Defendants’ (inexplicable) 

argument that the denial of Plaintiff’s promotion, her demotion, and eventual termination do not 
23 

constitute adverse employment actions is untenable. An action is adverse for the purposes of 

Title VII retaliation “if it might dissuade a reasonable worker from making or supporting a 

charge of discrimination,” (Brown v. Advocate South Suburban Hosp., 700 F.3d 1101, 1106 (7th 

2012)), and the actions taken against Howard surely would. Whether causation exists – i.e.,

whether a retaliatory animus motivated the Defendants’ adverse actions – is the real issue here. 

Id. 

 This case presents one of those rare instances where a Plaintiff has come forward with 

direct evidence of Title VII retaliation. See Argyropoulos v. City of Alton, 539 F.3d 724, 733 

(7th Cir. 2008) (“Because direct evidence essentially requires an admission by the employer, 

such evidence is rare.”) (internal citations omitted). In both Stephanie Day’s deposition and her 

affidavit, she testified that she met Frank and Maslic over lunch in the summer of 2008 to discuss 

the possibility of her returning to SomerCor and that they met for lunch a second time to 

continue the discussion. At the first lunch with Frank and Maslic, according to Day’s affidavit, 

“Frank said that [Howard] made a complaint of sexual harassment and discrimination” and “told 

[Day] very emphatically that Crystal Howard had to go.” Day is uncertain as to the exact dates 

of the lunches (though she testified that both took place prior to her receiving or accepting a 

formal offer of employment), but Plaintiff and Defendants agree that Day, Maslic, and Frank met 

for lunch on August 29, 2008. Her testimony therefore gives credence to the notion that Frank 

and Maslic were aware that Howard had made a complaint of sexual harassment and 

discrimination prior to September 9, 2008 (which Defendants contend was the date of Howard’s 

first complaint) and supports Howard’s own testimony that she first complained to Myra Smith 

in May 2008. 
24 

 Further corroborating Howard’s retaliation claim is the testimony of Howard’s colleague 

Terry Boston. Boston testified at her deposition that she was present in Howard’s office when 

Howard called Myra Smith and complained about sexual harassment and gender and race 

discrimination. SomerCor Reply to Pl. Resp. ¶ 35. SomerCor points to Boston’s deposition 

testimony in which she said that although she could not recall the exact date on which she 

witnessed Howard call Smith, this call occurred either immediately before or after “that time that 

[Howard] was off on sick leave.” Defendants argue that Howard took medical leave in February 

or March 2009, and so the call to Smith that Boston witnessed must have occurred around that 

time. Yet Defendants have put forth no evidence that Smith received a call from Howard during 

that timeframe, so this may or may not be the “sick leave” to which Boston was referring. The 

Court is not permitted to weigh the evidence at this juncture, but must determine whether a 

genuine issue exists regarding material facts. Myra Smith says that Howard only complained to 

her once, on September 9, 2008. Howard says she first called Smith in May 2008. Boston 

claims to have witnessed two calls to Smith, and Day’s testimony regarding Frank and Maslic’s 

knowledge of a complaint in the summer of 2008 supports Howard’s contention that she first 

called Smith in May. In light of this disputed testimony, the Court concludes that a reasonable 

jury could conclude that Howard first complained about sexual harassment and discrimination to 

Smith in May 2008. 

 No matter when Howard first complained, Defendants argue that causation is still not a 

material issue for trial, in light of the but-for causation standard that governs Title VII retaliation 

claims. See University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2533 

(2013) (“[T]he Court now concludes as follows: Title VII retaliation claims must be proved 

according to traditional principles of but-for causation.”). “This requires proof that the unlawful 
25 

retaliation would not have occurred in the absence of the alleged wrongful action or actions of 

the employer.” Id. Defendants argue that, in light of the evidence of Howard’s sub-par work 

performance (namely, the results of the Preston audit, which preceded Day’s hiring and 

Howard’s demotion, and Day’s July 2009 memo delineating the bases for her recommendation to 

terminate Howard), a reasonable jury could not find that Howard’s complaints were a but-for 

cause of the Defendants adverse employment actions. The Court disagrees. 

 Although Defendants’ evidence establishes the existence of a genuine, triable dispute 

over the cause of its actions (i.e., Defendants’ motives), a reasonable jury viewing the evidence 

as a whole could find the but-for cause of Defendants’ actions to be retaliatory animus. At her 

deposition, Day testified that during her first lunch with Frank and Day, “[t]hey said that Crystal 

had filed a complaint, that she had also alleged that David had sexually harassed her, and that 

they wanted her gone.” Day Dep. at 40. Day testified that Frank and Maslic “also said that 

[Howard] wasn’t doing a good job in servicing . . . and that her whole team was not performing,” 

id. at 40-41, but that her poor performance was a “guise” and that once she started at SomerCor 

she saw that Frank and Maslic’s reason for wanting to fire Howard “was more she filed these 

charges than she’s not performing.” Id. at 41. In Day’s affidavit, she testified that “[she] can say 

with absolute certainty, based on what [Frank and Maslic] said [at lunch in the summer of 2008] 

and their tone, that they wanted Crystal ‘gone’ because she had reported sexual harassment and 

discrimination first and foremost.” Day Aff. at 1. Further, she testified that Frank and Maslic 

made clear to her that “Crystal’s having reported the sexual harassment and discrimination . . . 

was the principal reason [Frank and Maslic] were so angry and wanted her ‘gone’ from 

SomerCor.” Id. at 2. At her deposition and in her affidavit, Day described her part in the 

termination effort. See Day Aff. at 2; Day Dep. at 46-54. In Day’s affidavit, she testified that: 
26 

from the moment I returned to SomerCor, it was clear that I was expected to be 

part of an effort to drive Crystal from her job. [Frank and Maslic] wanted me to 

meet with Crystal . . . constantly and to document each and every thing she failed 

to do no matter how trivial. I was to report everything to them and also to Nora 

O’Connor, Inland’s Human Resource Director. In fact, I was to have regular 

meetings with [Frank and Maslic] and Ms. O’Connor concerning Crystal’s 

performance. This all was an effort to lay the groundwork for firing Crystal and it 

was extraordinary with the constant documentation of every little thing that could 

be found that might be a problem with her work and the constant involvement of 

Nora O’Connor in that effort. They wanted Crystal gone and it was obvious to 

me that I was hired to help them do that. 

Day Aff. at 2. By September 2009, Day could “see the kind of environment [Frank and Maslic] 

had created for [Howard] and knew . . . [she] was hired to . . . create some kind of paper trail that 

would lead to her firing and make it look like it was performance-related.” Id. at 3. 

Additionally, as Day “continued to work at SomerCor, it became more and more obvious to 

[Day] that the idea Crystal didn’t know what she was doing or somehow had been responsible 

for problems in our department was ridiculous and that both [Frank and Maslic] knew that.” Id. 

In fact, Day testified that she unsuccessfully attempted to blow the whistle on the entire charade 

in July 2009 and prevent Howard’s termination by reporting Frank and Maslic both to human 

resources and Catherine Chapman, the company’s lawyer. Id.; see also Day Dep. at 54-56. In 

the end, “it was obvious to [Day] that Crystal’s discrimination allegations were not the chief 

reason [Frank and Maslic] wanted her gone, it was the sole reason.” Id. 

 The testimony in Day’s deposition and affidavit, therefore, is direct evidence by one of 

Howard’s superiors that she, Frank, and Maslic took action leading to Howard’s firing because 

Howard had complained of sexual harassment and discrimination. Day’s affidavit incorporates 

admissions by Frank and Maslic that their decisions to demote Howard and hire Day were 

retaliatory in nature. Defendants urge the Court to discount the “self-serving” testimony of Day, 

since her affidavit was created in response to Defendants’ 56.1 statements and (presumably) 
27 

because, subsequent to Howard’s dismissal, Day herself complained of discrimination, was fired 

from SomerCor, and brought a Title VII retaliation suit against the same defendants. But Day’s 

deposition testimony is consistent with her affidavit, which is largely duplicative. And besides, 

it is not for the Court to assess credibility or weigh the evidence at summary judgment. That is 

the job of the factfinder at trial with the aid of tools of the adversary process such as crossexamination. See Berry, 618 F.3d at 691. At this stage of the litigation, the Court examines the 

evidence it has before it and asks whether a genuine issue of material fact exists, such that a 

reasonable jury could find for the Plaintiff. Having answered that question in the affirmative 

with respect to Plaintiff’s Title VII retaliation claim, the Court denies Defendants’ motion for 

summary judgment as to Count II. 

C. Sexual Harassment 

 For Plaintiff’s claim of sexual harassment to survive summary judgment, Plaintiff must 

show that there is a material dispute about whether: (1) her work environment was objectively 

and subjectively offensive; (2) the harassment was based on her sex; (3) the harassment was 

“sufficiently severe or pervasive to have altered the conditions of her employment such that it 

created an abusive work environment”; and (4) there is a basis for employer liability. Passananti 

v. Cook County, 689 F.3d 655, 664, 667 (7th Cir. 2012). In determining whether the harassment 

rose to a level that altered the conditions of employment and created an abusive working 

environment, “we consider the totality of the circumstances, including the ‘frequency of the 

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere 

offensive utterance; and whether it unreasonably interfere[d] with an employee’s work 

performance.” E.E.O.C. v. Management Hospitality of Racine, Inc., 666 F.3d 422, 432 (7th Cir. 

2012) (quoting Gentry v. Export Packaging Co., 238 F.3d 842, 850 (7th Cir. 2001)). As the 
28 

Seventh Circuit has explained, it can be difficult to determine when sexual harassment is 

actionable under Title VII: 

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. We spoke in [Carr v. Allison 

Gas Turbine Div., General Motors Corp., 32 F.3d 1007, 1010 (7th Cir. 1994)] of 

‘the line that separates the merely vulgar and mildly offensive from the deeply 

offensive and sexually harassing.’ It is not a bright line, obviously, this line 

between a merely unpleasant working environment on the one hand and a hostile 

or deeply repugnant one on the other * * * . 

 

Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430-31 (7th Cir. 1995) (internal citations omitted). 

In determining on which side of the line a particular case falls – that is, to assess the 

frequency, severity, offensiveness, threatening and humiliating nature of the conduct at issue, 

and whether it unreasonably interferes with an employee’s work performance – the specific facts 

obviously matter a great deal. In some cases, comments may tend towards the offensive but are 

not frequent enough to constitute harassment. See Patt v. Family Health Sys., Inc., 280 F.3d 749, 

754 (7th Cir. 2002) (holding that a female nurse had no sexual harassment claim based on a few 

comments by her boss to the tune of “the only valuable thing to a woman is that she has breasts 

and a vagina,” because the comments were too isolated and sporadic to constitute pervasive 

harassment). In other cases, the comments may be more frequent, but not severe enough to alter 

the plaintiff’s employment conditions. See Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 

212 F.3d 976, 977 (7th Cir. 2000) (concluding that comments over the course of six months 

about a female employee’s shoes (“I prefer to see you in shoes with your toes out’”), lingerie 

(“Well, can I see some pictures of you in some of the outfits that you have bought from 

Frederick’s of Hollywood?”), and wardrobe generally (“What’s your color for next week?” and 

“Do all of your clothes correspond?”) were not severe enough to alter the conditions of the 
29 

plaintiff’s employment). And even when the complained-of conduct includes physical touching, 

there may not be actionable harassment. See Weiss v. Coca-Cola Bottling Co. of Chicago, 990 

F.2d 333, 337 (7th Cir. 1993) (determining that plaintiff had no sexual harassment claim based 

on her supervisor placing his hand on plaintiff’s shoulder several times, asking her out on dates, 

putting “I love you” signs in her work area, calling her a “dumb blond,” and attempting to kiss 

her in a bar). But other times, unwelcome touching coupled with offensive sexually-based 

remarks can cross the line into sexual harassment territory. See Jackson v. County of Racine, 

474 F.3d 493, 500 (7th Cir. 2007) (holding that plaintiffs’ accusations that their boss regularly 

touched them on the hair and back of the neck whenever he had occasion to interact with them, 

coupled with the offensive actions of simulating masturbation, sticking his finger in one of their 

ears, and kissing one of the plaintiffs on her lips, could show pervasive harassing conduct). And 

in some cases, comments alone can support a sexual harassment claim. See Boumehdi v. Plastag 

Holdings, LLC, 489 F.3d 781, 786, 788 (7th Cir. 2007) (determining that “eighteen sexist or 

sexual comments,” which included telling plaintiff (who was bent over in the course of her work) 

to remain in that position because it was perfect, asking her if she got a breast enlargement over 

the weekend, and asking her “what business she had getting pregnant at her age” when he found 

out that she had recently miscarried, were severe and pervasive enough to constitute sexual 

harassment, even in the absence of unwelcome sexual advances or physical conduct). The cases 

highlight the fact-intensive nature of the Court’s task of determining whether a defendant’s 

conduct is severe and/or pervasive enough to have altered a plaintiff’s employment conditions. 

To do so requires close examination of the conduct itself. 

Combing the Local Rule 56.1 Statements and the cited portions of the deposition 

transcripts, most of Howard’s allegations are too vague for the Court to deem the complained-of 
30 

conduct actionable under Title VII. Howard complains that Frank made “unwelcome 

comments” to her several times a week from January 2006 through September 9, 2008. Howard 

Dep. at 14, 72. When asked at her deposition exactly what she meant by “unwelcome 

comments,” Howard specified that the comments were in regard “to my appearance. The clothes 

I would wear,” (id.) and that Frank’s “voice was of a sexual tone.” Id. at 73. Plaintiff provided 

just two examples of the comments that Frank would make. The first is a comment that Frank 

made upon Howard’s return to the office after an off-site meeting. Frank said: “Wow. Is that 

what you had on all day? You look good.” Id. at 73. Second, Howard alleges that Frank 

referred to Howard and the other women in the loan servicing department as “the servicing girls” 

“whenever he walked by [their] offices.” Id. at 87-88. These comments (particularly the latter 

example), though sophomoric, annoying, and unprofessional, cannot support a claim for hostile 

work environment. One needs to look no further than the conduct described in the Seventh 

Circuit cases cited above to conclude that these comments are not severe enough to have created 

an abusive environment and sufficiently altered the conditions of plaintiff’s employment. 

But Howard complains about more than just Frank’s immature comments, testifying also 

that Frank often “rubb[ed] [her] arm.” Id. at 15. Howard specified that “If I was within arm 

reach of him, he would say ‘How you doing today?’ or, ‘What’s going on?’ You know, ask me 

how my day was going, but he’d rub my arm, and I would kinda step away so I wouldn’t be 

close enough for him to do that.” Id. Howard provided no more specificity than that, leaving 

the Court with no information regarding precisely where on her arm Frank would touch her, what 

exactly she meant that he “rubbed” her, or for how long each of these “rubs” took place. In 

terms of frequency, Howard testified that Frank did this “often . . . I’m sure it wouldn’t be less 

than 50 [times].” Id. at 15-16. And in addition to the arm rubbing, Plaintiff testified that Frank 
31 

would sometimes “reach to hug me,” but that she would “pull away from his hug” so that she 

“would not be in his arms.” Id. at 19-20. 

Like her description of Frank’s comments, Howard’s characterization regarding the 

nature of Frank’s physical conduct is too nebulous or too innocuous for the Court to conclude 

that it was objectively offensive. And the fact that Plaintiff never once asked Frank to stop these 

behaviors over the nearly two-and-a-half-year span in which they allegedly occurred, (Howard 

Dep. at 19, 72), leaves the Court skeptical as to whether Frank’s conduct was subjectively 

offensive to Plaintiff. Regardless, the conduct about which Howard complains is either too 

vague and/or ambiguous for the Court to conclude that Frank’s conduct objectively crossed the 

line from “unpleasant working environment into hostile and deeply repugnant.” See Baskerville, 

50 F.3d at 430-31. 

In one instance, though, Howard’s allegation is fairly specific. Howard testified that in 

May 2008 Frank asked her to “spend the night with him in Las Vegas.” Howard Dep. at 76-78, 

152. It appears that Frank asked Howard this at SomerCor’s office, prior to his departure for a 

business trip to Las Vegas. Id. Because Howard was not scheduled to take this trip, she believed 

that Frank was asking her to come on the trip with him and spend the night in his hotel room. Id.

at 77. According to Howard, when Frank first asked her the question, she did not respond 

because it caught her off guard. When he repeated it, Howard said, “No. That would not 

happen,” and Frank never mentioned it again. Id. at 77. But Frank’s isolated request, while 

brash and offensive if unwelcomed, was not pervasive, severe, threatening, or humiliating 

enough to create a hostile work environment. McKenzie v. Illinois Dept. of Transp., 92 F.3d 473 

(7th Cir. 1996), the most factually analogous case found by the Court, supports this conclusion. 

In McKenzie, the plaintiff’s boss made not one, but three, sexually suggestive comments that 
32 

could be construed as come-ons, the most offensive of which was “that he had heard that 

drinking coffee induces sexual arousal and, because he was coming over to her office, wanted to 

know if she was drinking coffee.” Id. at 477. The Seventh Circuit concluded that, although the 

“comments were most certainly offensive,” “the frequency or severity of the comments [did not 

rise] to the level of ‘unreasonably interfer[ing] with [plaintiff’s] working environment.” In light 

of McKenzie, and Howard’s inability to cite a single case where a court deemed conduct similar 

to Frank’s to be actionable under Title VII, the Court concludes that Frank’s request did not 

create an objectively hostile working environment. 

Viewing Plaintiff’s sexual harassment allegations as a whole, the complained-of conduct 

is either too vague, too infrequent, or too innocuous to rise to a level that altered the conditions 

of her employment and created an abusive working environment. Though Frank’s conduct may 

have been obnoxious and unprofessional, in light of the evidence in the record, no reasonable 

jury could conclude that he subjected Plaintiff to a hostile work environment in violation of Title 

VII. 

D. Hostile Work Environment

Howard brings a hostile work environment claim, separate and distinct from her sexual 

harassment claim, seemingly based on the working conditions that Frank, Maslic, and Day 

imposed on her once Day became her boss in October 2008. In Count IV of her amended 

complaint, Plaintiff alleges that Defendants “through the company’s managers, subjected [her] to 

a hostile work environment as a result of the discriminatory conduct referenced above, including 

her participation in EEO activities and/or her opposition to her discriminatory, unlawful 

conduct.” Amend. Compl. ¶ 24. Count IV is almost identical to Plaintiff’s retaliation claim in 

Count II, in which Plaintiff alleges that Defendants, “through their managers, subjected [her] to 
33 

retaliatory conduct . . . insofar as the actions taken against her, including those referenced above, 

resulted from her participation in the EEO process and/or her opposition to her managers’ 

discriminatory practice.” 

To the extent that Plaintiff is alleging that Defendants subjected her to adverse treatment 

in retaliation for complaints to HR and the EEOC, the Court has already determined that a triable 

issue exists and denied Defendants’ motion for summary judgment with respect to Plaintiff’s 

retaliation claim in Count II. To the extent that Plaintiff is alleging that Defendants 

discriminated against her based on her race or gender, the Court already decided this and granted 

summary judgment for Defendants as to Count I. And to the extent that Plaintiff is complaining 

about the unreasonable and unfair demands that Day placed on her at Frank and Maslic’s 

command, irrespective of any discrimination claim, that allegation cannot support a claim under 

Title VII. Title VII prohibits employment discrimination based on an individual’s race, color, 

religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). Plaintiff’s claims concerning abusive 

or hostile working conditions generally, if unrelated to claims of discrimination, are not 

actionable under Title VII. And to the extent that these claims are based on underlying 

discrimination, the Court has determined those issues in Counts I, II, and III. Accordingly, 

Plaintiff has not stated a hostile work environment claim, and the Court grants Defendants’ 

summary judgment motions as to Count IV. 

Defendants argue that Howard may not make any allegations related to her working 

conditions under Day’s supervision (including, presumably, with respect to her retaliation claim 

in Count II), because she did not make a hostile work environment charge in her EEOC 

complaint. “Under Title VII, a plaintiff is required to exhaust her administrative remedies by 

filing a complaint with the appropriate federal or state agency.” Dandy v. United Parcel Service, 
34 

Inc., 388 F.3d 263, 270 (7th Cir. 2004). Therefore, Courts review “solely those charges 

‘included in the EEOC charge . . . or reasonably related to the allegations of the charge and 

growing out of such allegations.’” Id. (quoting Haugerud v. Amery Sch. Dist., 259 F.3d 678, 689 

(7th Cir. 2001). But exhaustion is not an issue here, because Plaintiff alleged retaliation in both 

EEOC complaints. Although she did not explicitly complain about the day-to-day hassling she 

allegedly received from Day, Frank, and Maslic, these allegations reasonably relate to and grow 

out of Plaintiff’s retaliation claims. Indeed, in the wake of Howard’s initial EEOC complaint, 

which she made on October 16, 2008, she met with the EEOC investigator, Shawn Hayes, on 

numerous occasions and kept him abreast of these developments as they unfolded in real time. 

And in Defendants December 15, 2009 letter to Investigator Hayes in which they formally 

responded to Howard’s EEOC allegations, Defendants addressed the exact disciplinary measures 

taken by Day that Howard alleges were pretextual and retaliatory. See Letter to EEOC Dec. 15, 

2009 at 2 (Ex. X to [63]). Accordingly, the Court rejects Defendants’ argument that Plaintiff 

may not pursue her allegations related to the working conditions to which she was subjected 

under Day’s supervision. To the extent that these allegations relate to her retaliation claim in 

Count II, the sole Count on which Plaintiff may proceed to trial, Plaintiff is free to do so. 

IV. Conclusion 

For the reasons stated above, the Court grants Defendants’ motions for summary 

judgment [62, 73] with respect to Counts I, III, and IV and denies Defendants’ motions with 

respect to Count II. 
35 

 

Dated: March 26, 2014 _______________________________ 

 Robert M. Dow, Jr. 

 United States District Judge