investigation into the allegations. Def.’s Facts 4 89.

Temores argues the defendants did not act in good faith to enforce the sexual harassment
policy. First, she says that SG Cowen never had enough copics of its sexual harassment policy
available so she had to give her copy to new employees. Pl.’s Dep. at 161-77. This by itself is
not indicative of bad faith, especially because Temores states that she did reccive copies of the
policy from SG Cowen. See Id, at 171. Second, Temores argues that SG Cowen’s investigation
of her claims afier she filed her EEO complaint was inadequate because she was never
interviewed. P1.’s Resp. at 21. Although Temores had an attorney who insisted on participating
in any interview, thus precluding SG Cowen’s in-house counsel Gerri Harris from meeting
privately with Temores, it does not appear that Harris made any effort to set up an interview.
Based on this evidence, the Court finds Temores has raised a genuine issue as to whether the
corporate defendants acted in good faith to enforce its sexual harassment policy and therefore
denies defendants’ motion for summary judgment as to the issuc of punitive damages.

Conclusion

For the reasons stated above, the Court denies the defendants’ motion for summary
judgment [docket #29]. The case is set for a status hearing on November 10, 2003, at 9:30 a.m.
to discuss the possibility of scttlement. The final pretrial order yemains due on December 3,

2003.

MATTHEW F. KENNELLY
United States District Judge

Date: October 29, 2003

19


at 295, 309); let others believe they were sexual partners (P].’s Dep. at 99, Pl.'s Ex. L at 299),
called her “our girl” and “our bitch” (P1.’s Dep. at 59-60); told people on the phone “I’ve got
Dora sitting here on my Jap” (P1.’s Ex. I at 295) and “I have Dora on her knees kissing my ass,
begging me for her money [ have” (id, at 308); and induced her to go on social outings with him
on which he would make sexual advances toward her (P!.’s Dep. at 102-08,194-98, PI.’s Ex. L at
301-02), Temores also alleges that when she went to New York on business and when Marinaro
came to Chicago, he groped her (P1.’s Dep. at 306); induced her to socialize with him outside of
work (id. at 393-406, 436-45); kissed her (id. at 444-45, 470, 505, Pl.’s Ex. L at 310, 313);
offered to start an affair with her (Pl.’s Dep. at 493); and stared at her (id. at 468-74).

Under ordinary circumstances, an employee’s “failure to object to egregious conditions,
or to scek some form of redress is compelling evidence that the employee, or any reasonable
worker, would not find the conditions intolerable.” Wolf, 250 F.3d at 43 (citations omitted). But
this is not always the case; Wolf indicates that “extraordinary conditions” may exist in which an
employce who departs without sceking redress may still be able to maintain a claim of
constructive discharge. Jd. The Court believes a jury could find this is such a case. Temores
says she did not complain of the harassment even though it made her work environment
intolerable because she feared retaliation. She argues that she could not complain about Curley’s
behavior because he was the head of SG Cowen’s Chicago operations and the human resources
department for the firm was in New York, where it could not protect her from Curley. Pl.’s Dep.
al 186. Temores says she was afraid of Curley because he had reprimanded and threatened to fire
another employee who had asked human resources a question (P1.’s Dep. at 75-76); he had

threatencd to “take care of” people with whom she was having problems (id. at 334-43); and he

13


exercised reasonable care to prevent and correct promptly any sexually harassing

behavior, and (b) that the plaintiff employee unreasonably failed to take advantage

of any preventative or corrective opportunities provided by the employer or to

avoid harm otherwise.

Jd. SG Cowen and Societe Gencrale argue that even if Curley and Marinaro harassed Temores,
the corporate defendants cannot be held liable for the hostile work environment created by
Temores’ supervisors because SG Cowen and Socicte Generale are entitled to the affirmative
defense outlined in Ellerth and Faragher.

However, if the Court finds a tangible employment action occurred, we need not consider
whether the corporate defendants have established the reasonable care defense. In Ellerth the
Supreme Court defined a tangible employment action as “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing @ significant change in benefits.” Ellerth, 524 U.S. at 761.
But this list is not exhaustive - had the Supreme Court meant it to be, it would not have used the
phrase “such as” before listing examples of significant changes in employment status. See Jin v.
Metro. Life Ins. Co., 310 F.3d 84, 93 (2d Cir, 2002) (finding that the use of the words “such as”
suggests “the definition given by the Supreme Court is non-exclusive”); Suders v. Easton, 325
3d 432, 456 (34 Cir. 2003) (same), The Court reads Temores’ brief and deposition as raising
two distinct theories of tangible employment action, neither of which were enumerated in
Ellerth: (1) her employment was conditioned upon enduring “severe, pervasive and continuous
sexual harassment;” and (2) constructive discharge. Pl.’s Resp. at 11; Pl’s Dep. Vol. 3 at 81-82,
88-89, The Seventh Circuit has not considered either theory raised by Temores. Thus, the Court

must look to other circuits for guidance.


provides that “[nJo common law or statutory right to recover damages from the employer . . . for
injury or death sustained by any employce while engaged in the line of his duty as such
employee, other than the compensation herein provided, is available to any cmployee who is
covered by the provisions of this Act. ...” 820 ILCS 305/5(a). Because of this statute, an
employce may not bring a common law claim against her employer unless she proves either that
her injury was not accidental, that it did not arise from her employment; that it was not received
during the course of her employment; or that the injury is not compensable under the IWCA.
Meerbrey v. Marshall Field & Co., 139 Ill, 2d 455, 463, 564 N.E.2d 1222, 1226 (1990).

When a worker’s claim against her employer is based on an injury intentionally inflicted
on her by a co-employee, the injury is considered “accidental” under the {WCA and thus the
worker’s claim is preempted unless she can show that the employer directed or expressly
authorized the co-employec to commit the acts that caused the injury, Zd. An allegation that the
co-employee was acting within the scope of his authority is not sufficient to give rise to a claim
that the employer directed or expressly authorized the co-employce’s acts; thus a claim based on
a theory of respondeat superior is preempted by the LWCA even if the injury was intentionally
caused by the co-employes. Jd. al 465, 564 N.E. 2d at 1227. See also, e.g., Zakutansky v.
Bionetics Corp., 806 F, Supp. 1362, 1367 (N.D. Il. 1992); Jaskowski v. Rodman & Renshaw,
inc., 813 F. Supp. 1359, 1362 (N.D. Il. 1993), In addition, a claim that management ignored
evidence that the conduct was taking place is not suflicient; what is required is “actual direction,
encouragement, or participation” by management. Jaskowski, 813 F, Supp. at 1361 (citing
Collier v, Wagner Castings Co., 81 Il, 2d 229, 239, 408 NLE. 2d 198, 203 (1980)).

But in this case, Temores has provided evidence that two senior managers participated in

17


“{c]onstructive discharge may be a tangible employment action.” P1.’s Resp. at 10. A
constructive discharge occurs “when [an employee] is forced to resign because her working
conditions, from the standpoint of the reasonable employee, have become unbearable.” Mosher
y. Dollar Tree Stores, Inc., 240 F.3d 662, 667 (7 Cir. 2001) (citing Lindale v. Tokheim Corp.,
145 F.3d 953, 955 (7" Cir. 1998). The Seventh Circuit has yet to consider whether constructive
discharge constitutes a tangible employment action depriving the employer of the Ellerth
affirmative defense. See Hardy v. Univ. of Hlinots, 328 F.3d 361, 364 (7 Cir, 2003) (declining
to decide the issue because it was not raised in the district court), Wolf v. Northwest Indiana
Symphony Soc’y, 250 F.3d 1136, 1142 (7" Cir. 2001) (noting that “we have yet to determine
whether a constructive discharge is a tangible employment action within the meaning of Ellerth
and Faragher” and declining to decide the issue because the plaintiff “did not raise a genuine
issue of material fact that he was constructively discharged”), Mosher, 240 F.3d at 666-67
(same). Because the Court already concluded that Temores’ Title VII claims survive summaty
judgment because she has raised a genuine issuc under her first tangible employment action
theory, the viability of her constructive-discharge theory is not dispositive of the defendants’
motion for summary judgment. Bul because the issue is likely to arise at trial, the Court will
analyze Temores’ claim that a constructive discharge is a tangible employment action to

determine whether the corporate defendants are precluded from raising the affirmative defense if

3 The defendants argue that Temores should not be able to claim constructive discharge
because when she took disability leave she continued as an employee of SG Cowen and collected
disability benefits. Def.’s Reply at n, 7. For the purposes of determining whether a tangible
employment action occurred, the Court does not find that it matters whether Temores resigned
outright or left the workplace never to return but received disability benefits as a result. The
Court notes, however, that this distinction might be relevant when determining Temores’”
damages.


that her continued employment would actually be contingent on her compliance with his requests
that is, she need not offer proof of his subjective intent to fire or demote her if she did not
comply.” Zd.

In her lengthy deposition, Temores described comments made by Marinaro that a
reasonable person in her position could have understood (as Temores says she did) to condition
the receipt of an employment benefit on acquiescence to his sexual advances.' P1.’s Dep. Vol. 3
al 81-82, 88-89, Although Holly D. and Jin deal with making retention of employment
contingent upon submitting to sexual mistreatment, the Second and Ninth Circuits’ reasoning
suggests that a supervisor also commits a tangible employment action when he conditions receipt
of a benefit ~ such as a substantial bonus — on submitting to his sexual advances. The Second
Circuit relied heavily on an EEOC publication providing guidance for post-Ellerth enforcement
that explained:

If a supervisor undertakes or recommends a tangible job action based on a

subordinate’s response to unwelcome sexual demands, the employer is liable and

cannot raise the affirmative defense. The result is the same whether the employee

rejects the demands and is subjected to an adverse tangible employment action or
submits to the demands and consequently obtains a tangible job benefit, Such
harassment previously would have been characterized as “quid pro quo.” It would

be a perverse result if the employer is foreclosed from raising the affirmative

defense if its supervisor denies a tangible job benefit based on an employee’s

rejection of unwelcome sexual demands, but can raise the defense if its supervisor

grants a tangible job benefit based on submission to such demands. The
Commission rejects such an analysis. Jn both thosc situations the supervisor

’ The Court notes that Temores testified at her deposition that Curley referred to himself
as her “sugar daddy” and “the only man in [her] life that’s taking care of [her]” and that he tried
to get her a full-time salary while she was working part-time, all of which a reasonable person in
Temores position might interpret as containing an ulterior motive. Pl.’s Dep. at 371, 305-06.
But since Temores does not claim to have believed Curley expected something in return for his
kindness, the Court will not consider this evidence in deciding the defendants’ motion for
summary judgment.


a. Making employment benefits contingent on submission to abuse

A tangible employment action does not have to involve an economic harm. Jin, 310 F.3d
at 97. Recently the Second and Ninth Circuits — the only two courts of appeals to consider the
issue — concluded that “a plaintiff who contends that she was coerced into performing unwanted
sexual acts with her supervisor, by threats that she would be discharged if she failed to comply
with his demands, has alleged a tangible employment action under Title VIL.” Holly D. v.
California Institute af Tech., 339 F.3d 1158, 1162 (9" Cir. 2003); see also Jin, 310 F.3d at 99. Tn
both Holly D. and Jin, the plaintiffs alleged that they engaged in sexual conduct with their
supervisors because they thought they would lose their jobs if they did not submit to the
supervisors’ demands. The courts recognized that if the women had refused their supervisors’
soxual advances and been fired, the terminations would definitely constitute tangible employment
actions, Holly D., 339 F.3d at 1170, Jin, 310 F.3d at 98-99. They concluded that “[i]t would be
anomalous to find an employer liable when an cmployee was able to stand up to a supervisor's
sexual demands, and therefore provoke an action such as termination, but to find no liability
when the employce was unable to refuse and was actually subjected to sexual abuse.” Jin, 310
F.3d at 99; Holly D., 339 F.3d at 1170.

To show a tangible employment action under this theory, the plaintiff does not need to
show that the supervisor “explicitly demanded sex in return for job security.” folly D., 339 F.3d
at 1173. “Such a claim may lie either when continued employment has been expressly
conditioned on participation in sexual acts or when the supervisor's words or conduct would
communicate to a reasonable woman in the employec’s position that such participation is a

condition of employment.” Jd, The plaintiff does not need to prove that her supervisor “intended



the harassment of which she complains. It is not entirely clear that this is sufficient to avoid the
preemption bar, The fact that Curley and Marinaro were managers does not by itself make their
conduct that of the company for purposes of the preemption analysis; it must be shown that they
had “the authority to make decisions and set policy on behalf of” the employer. Daulo v.
Commonwealth Edison, 938 F. Supp. 1388, 1406 (N.D. Ill. 1996); Robinson v. Roney Oatman,
Inc., 97 C 8964, 1999 WL 1102694, at *14(N.D. Il, Nov. 23, 1999). But because defendants
have not attacked Temores’ claim on this basis, instead arguing only generally that the claim is
preempted, they are not entitled to summary judgment.
3. Availability of punitive damages under Title VII

Lastly, the corporate defendants argue that even if Temores prevails on her T. itle VII
claims, they cannot be held liable for punitive damages. The Supreme Court has held that “in the
punitive damages context, an employer may not be vicariously liable for the discriminatory
employment decisions of managerial agents where those decisions are contrary to the employer’s
‘good-faith efforts to comply with Title VIL” Kolstad v. American Dental Assoc., §27 U.S. 526,
545 (1999), “An employer may escape punitive damages liability for its manager’s acts . . . ifit
can demonstrate a good faith attempt to establish and enforce an antidiscrimination policy.”
Cooke v, Stefani Management Services, Inc., 250 F.3d 564, 568 (7" Cir, 2001). The corporate
defendants point out that they had a sexual harassment policy providing employees with multiple
methods of reporting misconduct, which was distributed to all employees and discussed at new
hire orientation and special sexual harassment training sessions. Def.’s Mot. at 9-10.
Furthermore, as soon as Temores filed her EEOC claim, the first time she made the corporate

defendants aware of the sexual harassment, an in-house counsel of SG Cowen conducted an

18


One of the hallmarks of a tangible employment action — and the reason why the Supreme
Court concluded an employer should be held strictly liable for the action — is that the agency
relationship gave the supervisor the power to take the action he has taken against the plaintiff.
See Etlerth, 524 U.S. at 761-62, In Hoily D., the Ninth Circuit explained that an employer
should be held liable if a supervisor conditions employment on acquiescence to sexual
mistrealment, because it is the power vested in the supervisor by the employer that makes this
contingency a credible ultimatum to the employee. Holly D., 339 F.3d at 1169. Similarly, when
the supervisor gives the employee a financial bonus with the expectation of receiving sexual
favors in retum, the agency relationship is evoked because the supervisor’s ability (o confer the
benefit is owed to the power vested in him by the employer. [t is therefore in keeping with the
agency principles adopted by the Supreme Court in Ellerth to find that the corporate defendants
could be held strictly liable under Title VII if a jury concluded that Ternores reasonably believed
that her reccipt of the two bonuses was contingent upon her submission to Marinaro’s sexual
advances. Because a reasonable jury could in fact make such a finding in this case, SG Cowen
and Societe Generale are not entitled o summary judgment based on the reasonable care
affirmative defense.

b, Constructive discharge

Temores also claims that Curley and Marinaro committed a tangible employment action
by creating a work environment so intolerable that she had to take sick leave because of the stress

they induced. Temores likens her sick leave to constructive discharge, arguing that


‘Minute Order Form (116/97)

i

‘ United States District Court, Northern District of Mlinois
Name of jun i er
or Magistrate Judge Matthew F. Kennelly “than Acsigned Judge
CASE NUMBER 02 C 7089 DATE 10/29/2003
CASE Temores vs, SG Cowen, ct al.
TITLE

[In the following box (a) indicate the party filing the motion, c.g.. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION;

DOCKET ENTRY:

(1) 0 Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Oo Answer brief to motion due. . Reply to answer brief due__

(4) ao Ruling/llearing on set fort

(5) Oo Status hearing[held/continued to] [set for/re-set forlon_—ssetfor__ at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on set for__— at.
(7) a Trial[set for/re-set for]on__sat

(8) a [Bench/Jury trial] [Hearing] held/continued to_____at

(9) Qa ‘his case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OOFRCP4(m) ClLocal Rule 41.1 CFRCP41(a\(1) O FRCP41(a)(2).

(10) Ml [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER. The Court denies the
defendants’ motion for summary judgment (#29), The case is set for status hearing on November 10,
2003 at 9:30am. to discuss the possibility of settlement, The final pretrial orderremains due on December
3, 2003.

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

No notices required, advised in open caurt

No notices required. ber of
number of notices

Natices mailed by judge's staff.

Notified counsel by telephone. oct 3o 2083

wv | Docketing to mail notices.

2

Hare pen et cess

Mail AO 450 form. }

Copy to judge/magistrate judge.

EP 2085

date med notice
courtroom =

ID deputy’s
initials

~ Date/time received in
central Clerk’s Office ruling deputy initials



191 F.3d at 294.

The Third Circuit has rejected the Second Circuit’s reasoning, explaining that “[i]t is of
no consequence that constructive discharge may be caused by a co-worker because we are only
concerned here with that which is caused by a supervisor. And in that regard, our inquiry is not
whether an action may be caused by a co-worker or supervisor, it is whether the supervisor's
action constitutes a ‘significant change in employment status.” Suders v. Easton, 325 F.3d 432,
457 (34 Cir. 2003) (quoting £llerth, 524 U.S. at 761). The Court agrees with the Third Circuit
and the Eighth Circuit, which has concluded without discussion that a constructive discharge
constitutes a tangible employment action, See Jackson v. Arkansas Dep ‘t of Educ., Vocational
and Technical Educ. Div., 272 F.3d 1020, 1026 (8" Cir, 2001) (citing Ellerth, 524 U.S. at 765).
The Court reads nothing in Ellerth and Faragher requiring a rule that an employer cannot be held
vicariously liable for any action taken by a supervisor that could have been taken, under other
circumstances, by a co-worker. Rather, the question is whether the supervisor’s abuse of his
authority made the adverse action possible.

In Ellerth the Supreme Court decided to apply “ihe agency principles of vicarious liability
for harm caused by misuse of supervisory authority.” £llerth, $24 U.S. at 764. It excluded
tangible employment actions from the affirmative defense because “a supervisor who takes
official action against an employee should be treated as acting for the employer.” Reed vy. MBNA
Marketing Systems, Inc., 333 F.3d 27, 33 (1* Cir. 2003) (emphasis in original). Thus an
employer should be held vicariously liable for those actions that a supervisor was able to take
against an employee by abusing the authority vested in him by the employer. Under this rule,

vicarious liability should exist when a supervisor causes a constructive discharge by using the

11


a constructive discharge is shown.

Several circuits have considered the question. The Second Circuit has concluded that
“constructive discharge does not constitute a ‘tangible employment action’ as that term is used in
Ellerth and Faragher.” Caridad v, Metro-North Commuter R.R., 191 F.3d 283, 294 (2d Cir.
1999); see also Turner y. Dowbrands, Inc., 221 F.3d 1336 (6" Cir. 2000) (citing Caridad). The
Second Circuit relied on the Supreme Court’s discussion of agency principles in El/erth and
Faragher to reach its conclusion. In Ellerth and Faragher, the Supreme Court accepted the
“aided in the agency relation” standard for employer liability, concluding that “it makes sense to
hold an employer vicariously liable for some tortious conduct of a supervisor made possible by
the abuse of his supervisory authonty.” Faragher, 524 U.S. at 802; see also Ellerth, 524 U.S. at
761-62. Contrasting the actions of co-workers to those of supervisors, the Supreme Court
explained:

When a supervisor makes a tangible empJoyment decision, there is assurance the

injury could not have been inflicted absent the agency relation. A tangible

employment action in most cases inflicts direct economic harm. As a general

proposition, only a supervisor, or other person acting with the authority of the

company, can cause this sort of injury. A co-worker can break a co-worker’s arm

as easily as a supervisor, and anyone who has regular contact with an employee

can inflict psychological injuries by his or her offensive conduct, But one co-

worker (absent some elaborate scheme) cannot dock another’s pay, nor can one

co-worker demote another. Tangible employment actions fall within the special

province of the supervisor, The supervisor has been empowered by the company

as a distinct class of agent to make economic decisions affecting other employecs

under his or her control.

Ellerth, 524 U.S. at 761-62 (citations omitted). In Caridad the Second Circuit read this to mean

that an employer cannot be held strictly liable for a constructive discharge because “[c]o-

workers, as well as supervisors, can cause the constructive discharge of an employee.” Caridad,


undertakes a tangible employment action on a discriminatory basis. The Supreme

Court stated that there must be a significant change in employment status; it did

not require that the change be adverse in order to qualify as tangible.

EEOC, Enforcement Guidance: Vicarious Employer Liability For Unlawful Harassment by
Supervisors, 1999 WL 33305874, at * 5 June 18, 1999) (emphasis added). The EEOC’s
enforcement guidelines suggest that conditioning any sort of employment benefit on submitting
to scxual abuse constitutes the type of tangible employment action that invokes employer liability
— an adverse action is not essential to a claim under a tangible employment action theory of
employer liability. This reading is consistent with Ellerth, which specifically said “a decision
causing, a significant change in benefits” constitutes a tangible employment action. Ellerth, 524
U.S, at 761.

At her deposition, Temores testified that the day before she called in sick and never
returned to SG Cowen, she received a call from Marinaro, in which he told her that he was going
to give her an extra $2000 bonus in January and a second $2000 bonus in March that no one elsc
was getting. Pl.’s Dep. Vol. 3 at 88-89. Temores says that in light of Marinaro’s past behavior
toward her and his recent comments to her that he would be coming to Chicago a lot more now
that Curley had resigned, she interpreted the bonus as having strings attached.’ fd. al 81-82. The
Court finds that her testimony raises a genuine issue as to whether a reasonable person in her

situation would have believed receipt of the bonuses was contingent upon submission to sexual

abuse

2 in contrast, when Curley gave Temores a $12,000 bonus in January 2000, Temores
asked Curley if she would owe him anything in return or f the bonus would be used against her
in the future, and he explicitly said that he did not want anything from her and the bonus was
merit-based. Pl,’s Dep. at 369.



Analysis

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 a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The Court must look at the evidence “as a jury might,
construing the record in the light most favorable to the nonmovant and avoiding the temptation to
decide which party’s version of the facts is more likely true.” Payne v. Pauley, 337 F.3d 767,
770 (7" Cir. 2003), The Court’s “function is not to weigh the evidence but merely to determine
if ‘there is a genuine issue for trial."” Bennet v. Roberts, 295 F.3d 687, 694 (7" Cir. 2002)
(citation omitted). “Summary judgment is not appropriate ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Payne, 337 F.3d at 770 (citation
omitted).
1. Title VII claims

Temores has sued SG Cowen and Societe Generale for violating Title VII, claiming the
corporate defendants should be held vicariously liable for the sexual harassment she suffered at
the hands of their supervisors. “An employer is subject to vicarious liability to a victimized
employee for an actionable hostile environment created by a supervisor with immediate (or
successively higher) authority over the employce.” Burlington Indus., Inc. v, Ellerth, $24 US.
742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). However, if no
tangible employment action is taken by the plaintiff's supervisor,

a defending employer may raise an affirmative defense to liability or damages,

subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc.
8(c). The defense comprises (wo necessary elements: (a) that the employer



knew judo and had a gun (id. Vol, 3 at 32-33); and she thought he had been arrested for domestic
abusc (id, at 335). Temores says she did not report Marinaro’s conduct because she believed the
human resources department reported to him. fd. at 419.

‘The defendants argue that Temores cannot show that her working conditions were so
intolerable that she would have to resign, because she went on disability leave after Curley had
left the company, Def.’s Reply n.7. The Court disagrees. [f Temores claimed that she was
harassed only by Curley, defendants’ argument might be persuasive. However, Temores alleges
several incidents of sexual abuse by Marinaro, going so far as to state that one incident with
Marinaro was more frightening than the incidents with Curley. Pl.’s Dep. at 467-475, 560. She
further states that just before she went on sick leave, Marinaro had intimated to her that he would
be coming to sce her much more often. /d, at 459-61; id. Vol. 3 at 81, The Court finds that
Temores has raised a genuine issue as to whether a reasonable person would have found that the
harassment created a situation so unbearable that she felt caving the workplace was her only
option.

But to impose liability on the corporate defendants, Temores must not only show that a
reasonable person would find her working environment unbearable ~ she must also show that
Curley and Marinaro used the supervisory authority vested in them by SG Cowen and Societe
Generale to create the conditions that made the environment unbearable. As explained above,
Temores felt that she had to endure the harassment and could not complain about it because
Curley was the head of the corporate defendants’ Chicago operations and had threatened to fire
those who spoke with the New York office, and she thought the human resources specialists

reported to Marinaro. Furthermore, she has offered evidence that Curley and Marinaro forced

14


incidents of sexual harassment,” Jd. al 516, 687 N.E.2d at 23; rather the question is whether the
common law claim is premised upon legal obligations and prohibitions that exist as a matter of
{Ninois law only under the Act and have no other independent foundation. See, e.g., Bartoli v.
Applebee's Restaurant, No. 00 C5954, 2001 WL 40798, al *2 (N.D. TH. Jan. 17, 2001), Ifthe
“plaintiff has established a basis for imposing liability on the defendant independent of any
statutory cause of action under the Act,” the claims are not precmpted by the IRA.
Maksimovie, 177 IN. 2d at 514, 687 N.E.2d at 22,

The fllinois Supreme Court has specifically and unequivocally held that assault, battery
and false imprisonment “are long-recognized tort actions which exist wholly separate and apart
from a cause of action for sexual harassment under the [IHRA]” and thus are not preempted by
(he state statute. Jd. at 517, 687 NE. 2d at 23. The Court concludes that the same is true of
Temores’ HED claim. Such claims have been recognized by the Illinois courts as independent
actions since long before the adoption of the IHRA. See Knierim v. 1220, 22 I, 2d 73, 174
NE.2d 157 (1961). The Court is cognizant of the fact that the Seventh Circuit recently found an
ITED claim against an employer that “depend(ed] on allegations of sexual harassment” to be
preempted by the THRA. Quantock v. Shared Mktg. Services, Inc., 312 F.3d 899, 905 (7" Cir.
2002), But in this regard, the final word on whether an Illinois statute preempts an Tilinois claim
comes from Illinois’ highest court, which in Maksimovic rejected an analysis based on the factual
relationship between a claim and the provisions of the IHRA in favor of an analysis based on the
source of the legal duty underlying the claim.

We likewise reject defendants’ argument that Temores’ IED claim against SG Cowen

and Socicte Generale is preempted by the Illinois Workers’ Compensation Act. The WCA

16


Marinaro would retaliate against her if she disclosed their behavior. Pl’s Dep. at 186, 419.
Curley was the head of SG Cowen’s Chicago operations, and Marinaro was his boss.

On January 8, 2002, Curley lefl SG Cowen. Def.’s Facts ] 62, A week later, Temores
filed a complaint with the EEOC alleging sexual harassment. Jd. (67. Temores claims that in
late January, Marinaro called her and told her that he was going to give her and no one clse— a
$2000 bonus in January and March. P1.’s Dep. Vol. 3 at 88-89, Temorcs says that in light of his
past behavior and his recent comment that he would be seeing her more frequently because he
would be traveling to Chicago more often, she felt that he was giving her the bonus with sexual
expectations, /d, at 81-82. The day afler the conversation, Temores took sick leave, saying the
stress caused from enduring more than a year of constant harassment had been debilitating. Pl.’s
Facts { 109.

The defendants have filed a motion for summary judgment, arguing that: (1) even if the
alleged harassment occurred, SG Cowen and Societe Generale cannot be held vicariously liable
for the actions of their supervisors because they exercised reasonable care to prevent any sexually
harassing behavior and Temores unrcasonably failed to avail herself of the firm’s reporting
procedures; (2) Temores’ tort claims are precmpted by the Tlinois Human Rights Act; (3)
‘Temores’ LIED claim against the corporate defendants is barred by the Tllinois Workers”
Compensation Act; (4) if the Court grants summary judgment on the Title VII claim but not the
state law claims, the Court should decline to exercise supplemental jurisdiction over the state law
claims; and (5) Temores cannot collect punitive damages from the corporate defendants. The

Court denics the defendants’ motion for summary judgment.



IN THE UNITED STATES DISTRICT COURT ener
(t

FOR THE NORTHERN DISTRICT OF ILLINOIS Be

p TON .
EASTERN DIVISION ocr 38 7003
DORA TEMORES, :
Plaintiff, oalfenat >
v. Case No. 02 C 7089

SG COWEN, SOCIETE GENERALE,
JOSEPH MARINARO, AND
DAN CURLEY,

Defendants.

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:

Plaintiff Dora Temores has sued her former employer SG Cowen, a subsidiary of Societe
Generale, alleging sexual harassment and sex discrimination in violation of Title VTI of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000c et sey. She has also sued her former supervisors Dan
Curley and Joseph Marinaro for assault, battery and false imprisonment. Temores also named all
the defendants in a claim of intentional infliction of emotional distress (“TIED”).

Temores alleges that betwcen September 2000 and January 2002, Curley and Marinaro
made sexually explicit comments to her, forcibly held her in order to kiss her, touched her body
and repeatedly made sexual advances toward her. Temores and Curlcy shared a small office in
Chicago; Marinaro worked in New York City. Although Temores, who had human resources
responsibilities, knew of SG Cowen’s sexual harassment policy, she never reported Curley or

Marinaro’s conduct to the human resources department. She says she was afraid that Curley and



authority vested in him by the agency relationship to make the employce’s working environment
intolerable, Cf id. (suggesting a tangible employment action may occur in “cases in which
official actions by the supervisor - ¢.g., an extremely dangerous job assignment to retaliate for
spumed advances - could make employment intolerable”). Generally, a plaintiff can only show
that she was constructively discharged if a “reasonable employee would have concluded that the
conditions made remaining in the job unbearable.” Lindale v. Tokheim Corp., 145 F.3d 953, 955
(7" Cir, 1998). Because it is possible for a co-worker to cause a constructive discharge, Caridad,
191 F.3d at 294, an employer only should be liable for a constructive discharge if the plaintiff can
show that her supervisor used the authority vested in him by the employer to create working
conditions that a reasonable employee would find to be unbearable.*

The Court finds (hat Temores has raised a genuine issue as to whether Curley and
Marinaro used the authority vested in them by SG Cowen and Societe Generale to create working
conditions that a reasonable employee would find to be intolerable and that Temores actually
found to be unbearable. Temores claims that the frequent harassment by Curley and Marinaro
induced so much anxiety and stress that she had to take sick leave and never returned to her job.
Temores alleges that for the sixteen months that she spent working in a small office with Curley,
he tried to kiss her (P1.’s Dep. at 108, 210, Pl.’s Ex. L at 302, 304, 305, 307, 314, 315); touched

her body sexually (PI.’s Dep. at 107-08, 197-98), commented on her body (id. at 375, Pl.’s Ex. L

*The Court notes that the threshold for showing a constructive discharge is appreciably
higher than the threshold for showing an actionably hostile work environment: to be actionable
under Title VIL, “a sexually objectionable environment must be both objectively and subjectively
offensive, one that a reasonable person would find hostile or abusive, and one that the victim in
fact did perceive to be so.” Farugher, 524 U.S. at 787. Not all plaintiffs who can prove that an
actionably hastile work cnvironment existed and who then left the job will be able to establish
that a constructive discharge occurred for which the employer is strictly liable.

12


her to go out socially with them -- and when she did, she says, they groped and kissed her — by
implicitly and explicitly telling her she had to come because they were her bosses. PI.’s Dep. at
105, 194, 397. The Court finds Temores has presented cnough evidence to raise 4 genuine issuc
as to whether Curley and Marinaro abused their supervisory authority to create an objectively and
subjectively unbearable work environment.

Because the Court finds Temores has raised genuine issues of material fact as to whether
tangible cmployment actions occurred, the Court nced not consider the corporate defendants’
affirmative defense at this time. Thus, the Court does not consider the corporate defendants’
claims that they took reasonable care to prevent harassment and Temores unreasonably failed to
avail] herself of the firm’s anti-harassment measures, However, the Court notes that because a
jury could find that no tangible employment action occurred in this case, the corporate defendants
will be entitled (o introduce at trial evidence supporting the reasonable care affirmative defense.

Because the Court has not granted the corporate defendants’ motion for summary
judgment on the Title VI claims, the defendants’ request that the Court deny supplemental
jurisdiction over the state law tort claims is moot.

2. State law tort claims

The defendants argue that counts 3 through 9 of Temores* complaint, which raise state
law tort claims, are preempted by the Lllinois Human Rights Act. See 775 ILC8 5/8-111(c). The
Llinois Supreme Court has held that common law claims are preempted if they are “inextricably
linked to a civil rights violation such that there is no independent basis for the action apart from
the [[HRA] itself.” Maksimovic v. Tsogalis, 177 Wi. 2d 511, 517, 687 N.B.2d 21, 23 (1997). The

THRA does not bar common law tort claims simply because they are “factually related to

15