a particular situation.” /d., at *11 (quoting Crady v. Liberty National Bank & Trust Co. of
Indiana, 993 F.2d 132, 136 (7 Cir. 1993)). Accordingly, the court found the plaintiffs suffered
adverse employment actions when their “reassigned jobs were objectively inferior; they involved
far less skill and significantly harsher working conditions than the plaintiffs’ prior positions.” Jd.,
at *10.

Roberts presented evidence that she suffered what amounted to a “reassignment with
significantly different responsibilities” under El/erth. She testified at trial that after she refused
Flick’s sexual advances, he substantially reduced her job responsibilities. Roberts admitted that
Flick did not decrease her salary, but she equated her reduced job duties to that of a “glorified
cleaning lady.” “Sometimes job responsibilities can be quite intellectually stimulating, but other
duties can be routine at best.” Dahm v. Flynn, 60 F.3d 253, 257 (7 Cir. 1994). The jury
reasonably could have found that Flick reduced Roberts’ responsibilities to only the most menial
of duties. In a factually similar case, the Seventh Circuit ruled that such a reduction in
responsibilities could constitute an adverse employment action. The plaintiff in Hoffman-
Dombrowski v. Arlington International Racecourse, Inc., 254 F.3d 644 (7" Cir. 2001), claimed
that she suffered an adverse employment action when her employer transferred her and decreased
her responsibilities from preparing the budget and payroll and staffing hundreds of clerks to
emptying lottery machines and scheduling one part-time clerk and four full-time clerks. Jd. at
649. The Seventh Circuit found that even though the transfer did not affect her title or
compensation, “a rational jury could find that her responsibilities were diminished to such an
extent that she suffered an adverse employment action.” Jd. at 651. Following this case law and

viewing the evidence in the light most favorable to Roberts, as we must on a motion for


provision. The victim of harassment should not fear retaliation if she resists sexually predatory
behavior by colleagues or supervisors. See Armbruster, 1996 WL 289991, at *3 (“[R]efusing
sexual advances itself should be viewed as protected conduct under anti-discrimination law, for
which employees should not be made to fear retaliation.”).

Viewing the evidence in the light most favorable to Roberts, a reasonable jury could find
that Roberts repeatedly resisted Flick’s sexually harassing behavior and that, as a result, Flick
substantially reduced her job responsibilities. Therefore, the County is not entitled to judgment
as a matter of law on Roberts’ retaliation claim.

3. Section 1983

There is no question that “{s]exual harassment of female employees by a state employer
constitutes sex discrimination for purposes of the equal protection clause of the fourteenth
amendment.” Bohen v. City of East Chicago, Indiana, 799 F.2d 1180, 1185 (7" Cir. 1986). As
such, a local governmental employee like Roberts can sue for sexual harassment under § 1983.
See, e.g., Walker v. Taylorville Correctional Center, 129 F.3d 410, 414 (7 Cir. 1997) (finding
prison inmate had stated a claim for sexual harassment under § 1983). Flick argues that he is
entitled to judgment as a matter of law on Roberts’ § 1983 claim because she failed to prove that
he acted under color of law. Section 1983 states that

[e]very person who, under color of [law] . . . subjects, or causes to be subjected,

any citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

42 U.S.C. § 1983. Flick essentially argues that because a private employer could sexually harass

a subordinate the way the jury found he harassed Roberts, he must not have been acting under


transfer from the Inspector Generai’s office ~ and away from Flick — constituted an adverse
action; or (2) resisting the sexual advances of a supervisor constitutes protected activity.

The County argues that Roberts cannot claim that she was retaliated against for
complaining to Kilgallon unless her lateral transfer constituted an adverse employment action. It
relies on a 2001 Seventh Circuit decision stating that “‘a Jateral transfer without a loss in benefits
does not constitute an adverse employment action.” Stutler v. Illinois Department of
Corrections, 263 F.3d 698, 702 (7 Cir. 2001) (citations omitted). It is unclear whether Stutler is
still good law. A year after Stutler was decided, the Seventh Circuit stated that “[w]e do not
mean to suggest . . . that retaliation, to be actionable under Title VII (or other statutes), has to
involve an adverse employment action. It does not.” Herrnreiter, 315 F.3d at 745. The court
declined to determine whether an act of retaliation that “does take the form of an employment
action” must be “as severe as would be required if the action were charged as discrimination
rather than as retaliation.” Jd. at 746 (emphasis in original). But more recently, in Johnson v.
Cambridge Industries, Inc., the Seventh Circuit stated that even if a “more generous standard”
governs retaliation cases, “the employee must complain of some action on the employer’s part
that causes her to suffer a real harm.” 325 F.3d 892, 902 (7 Cir. 2003). The Court need not
wade further into these murky waters, however, because Roberts’ alternative theory is sufficient
to sustain her retaliation claim.

Roberts argues that Flick retaliated against her by reducing her job responsibilities when
she engaged in the protected activity of rebuffing his sexual advances. Because we have already
found under the comparatively higher standard of harm that applies to discrimination cases that a

substantial reduction in job responsibilities may constitute an adverse employment action, the


judgment as a matter of law, the Court finds a rational jury could find that Roberts suffered a
tangible employment action and, accordingly, the County was not entitled to the
Ellerth/Faragher affirmative defense.
2. Retaliation

The County argues that it is entitled to judgment as a matter of law on Roberts’ retaliation
claim because she failed to prove that she suffered an adverse employment action after
complaining about Flick’s behavior to Mark Kilgallon of the Cook County Bureau of Human
Resources. To prove a claim of retaliation, the plaintiff must show that she “engaged in
protected activity .. . and as a result suffered the adverse employment action of which [s}he
complains.” Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7" Cir.
2002). The County concedes that Roberts’ complaint to Kilgallon constituted protected activity,
but it argues that the transfer that resulted was not an adverse employment action. In her
response, Roberts does not contend that she suffered an adverse employment action when she
was transferred from the Inspector General’s office to another department after filing her
complaint. Rather, she argues that each time she rebuffed Flick’s advances she engaged in
protected activity and that the reduction in responsibilities that resulted constituted adverse
employment action. The jury’s verdict must stand if either Roberts’ transfer was an actionable
harm she suffered as a result of her complaints to Kilgallon or Roberts’ refusal of Flick’s
advances was protected activity for which her job responsibilities were significantly reduced.
Because the Court has already determined that substantial reductions in job responsibilities can
constitute an adverse employment action, and Defendants concede that Roberts’ complaints to

Kilgallon were protected activity, a reasonable jury could have found for Roberts if (1) Roberts’


Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437, 438-39 (S.D.N.Y. 1996). But there is an
equal number of district court judges who have found the refusal of sexual advances to constitute
protected activity. See Little, 210 F. Supp. 2d at 385-86; Black y. City & County of Honolulu,
112 F. Supp. 2d 1041, 1049 (D. Haw. 2000); Farrell v. Planters Lifesavers Co., 22 F. Supp. 2d
372, 392 (D.N.J. 1998), aff'd in part, rev'd in part on other grounds, 206 F.3d 271 (3d Cir.
2000); Fleming v. South Carolina Department of Corrections, 952 F. Supp. 283, 288 (D.S.C.
1996); Armbruster v. Epstein, No. Civ. A 96-CV-1059, 1996 WL 289991, at *3 (E.D. Pa. May
31, 1996); EEOC v. Domino’s Pizza, 909 F. Supp. 1529, 1536 (M.D. Fla. 1995); Burrell v. City
University of New York, 894 F. Supp. 750, 761 (S.D.N.Y. 1995); and Boyd v. James S. Hayes
Living Health Care Agency, Inc., 671 F. Supp. 1155, 1167 (W.D. Tenn. 1987).

The Court agrees with those district judges who have found that refusing sexual advances
is protected activity under Title VIL. Title VII makes it unlawful “for an employer to discriminate
against any of his employees . . . because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42
U.S.C. § 2000e-3(a) (emphasis added). Sexual harassment is clearly an unlawful employment
practice under Title VII: the Supreme Court has read 42 U.S.C. § 2000e-2(a)(1) as prohibiting
“sexual harassment so severe or pervasive as to alter the conditions of [the victim’s] employment
and create an abusive working environment.” Faragher, 524 U.S. at 786 (internal quotation
marks and citation omitted). Opposing sexually harassing behavior constitutes “oppos{ing] any
practice made an unlawful employment practice” by Title VIL, and accordingly it is activity

protected by § 2000e-3(a). This comports with the purpose of Title VII’s anti-retaliation


Minute Onder Form (0697)

«

United States District Court, Northern District of Hlinois

Name of Assigned Judge Sitting Judge If Other
aor Magistrate Judge Matthew F. Kennelly than Assigned Judge
CASE NUMBER 01 C 9373 DATE 5/7/2004
CASE Roberts vs. County of Cook
TITLE
Lin the following box (a) indicate the party fiting the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefty the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for at
— —— i
(5) im} Status hearing[held/continued to) [set for/re-set for] on set for 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 at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).
ao) [Other docket entry) For the reasons set forth in open court, the Court grants defendants’ motion
for a new trial, but denies their motion of amend the judgment (77).
at) [For further detail see order attached to the original minute order.}
No notices required, advised in open court. Document
No notices required. ; Number
umber of notices.
Notices mailed by judge’s staff. MAY 12 2004
Notified counsel by telephone. ame
ao | Docketing to mail notices.
Mail AO 450 form, id, om
Copy to judge/magistrate judge. ea cgt
courtroom dase malel pote
OR deputy’s las ! ney
initials —— -
Date/time received in
central Clerk's Office mailing deputy ital

(im ad

Vv



sexual harassment,” Jd. at 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 Ilinois law only under the Act and have no other independent
foundation. See, ¢.g., Bartoli v. Applebee’s Restaurant, No. 00 C 5954, 2001 WL
40798, at *2 (N.D. Ill. Jan. 17, 2001), If the “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 preempted by the IHRA. Maksimovic, 177 Il.
2d at 514, 687 N.E.2¢ at 22.

The Hlinois 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 the state statute. Jd. at 517, 687 N-E.
2d at 23. The Court concludes that the same is true of Temores’ ITED claim.
Such claims have been recognized by the Illinois courts as independent actions
since long before the adoption of the HRA. See Knierim v. Izzo, 22 I\. 24 73,
174 N.E.2d 157 (1961). The Court is cognizant of the fact that the Seventh
Circuit recently found an IED claim against an employer that “depend{ed] on
allegations of sexual harassment” to be preempted by the IHRA. Quantock v.
Shared Mitg. Services, Inc., 312 F.3d 899, 905 (7" Cir. 2002). But in this regard,
the final word on whether an Illinois statute preempts an Illinois 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.

Temores, 289 F. Supp. 2d at 1006-07. Because Roberts’ IED claim is not based on the violation

of a legal duty created by the IHRA, Defendants are not entitled to judgment as a matter of law

on the IED claim.

Conclusion

For the reasons stated above and in open coust, the Court grants Defendants’ motion for a

new trial, but denies their motion to amend the judgment (docket # 77].

MATTHEW F. KE! LLY
United States District Judge

Date: May 7, 2004

il


color of law. The Court disagrees.

Harassment by a governmental supervisor of a subordinate employee on the job
constitutes a violation of § 1983 regardless of whether a private employee could have engaged in
the same type of harassing conduct. Liability under § 1983 for harassment turns on whether
Flick engaged in the harassing conduct in his official capacity as Roberts’ supervisor and whether
he had access to her by virtue of his government position. Walker, 129 F.3d at 413-14. For
example, in Annis v. County of Westchester, 36 F.3d 251, 254 (2d Cir. 1994), the court found that
“[t]here can be no question” that the plaintiffs supervisors were amenable to suit for harassing
and discriminating against the plaintiff “inasmuch as they were conducting themselves as
supervisors for a public employer and thus were acting under color of state law.” Flick was
Roberts’ supervisor and had day-to-day contact with her because she worked for him in his
capacity as Inspector General. For this reason, Flick’s alleged conduct was under color of law for
purposes of § 1983. He is not entitled to judgment as a matter of law.

4. Intentional infliction of emotional distress

Defendants argue they are entitled to judgment on Roberts’ intentional infliction of
emotional distress (ED) claim because it is preempted by the Illinois Human Rights Act
(HRA). The Court rejected an identical argument in Temores v. SG Cowen, 289 F. Supp. 2d
996, 1006-07 (N.D. Ill. 2003). We quote the two paragraphs of that decision explaining why the
JHRA does not preempt an IIED claim:

The Illinois 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 [IHRA] itself.” Maksimovic v.

Tsogalis, 177 I. 24 511, 517, 687 N.E.2d 21, 23 (1997). The IHRA does not bar
common law tort claims simply because they are “factually related to incidents of

10


viability of Roberts’ second theory of retaliation does not depend on the proper measure of harm
in retaliation cases. Rather, the viability of Roberts’ theory depends on whether refusals of
sexual advances constitute protected activity. As Roberts notes, the Seventh Circuit has declined
to decide whether the rejection of sexual advances constitutes “a statutorily protected activity
within the meaning of Title VII.” Murray v. Chicago Transit Authority, 252 F.3d 880, 890 (7"
Cir. 2001). And it appears no other Courts of Appeals have addressed the issue. Little v.
National Broadcasting Co., 210 F. Supp. 2d 330, 385 (S.D.N.Y. 2002) (citing Second, Third and
Seventh Circuit cases declining to decide whether a rejection of sexual advances is protected
activity), The Eighth Circuit has considered a claim of retaliation for refusal of sexual advances,
but it did not discuss whether refusal of sexual advances constituted protected activity because it
found the retaliation claim deficient on other grounds. See Henthorn v. Capitol
Communications, Inc., 359 F.3d 1021, 1028-29 (8" Cir. 2004).

District judges are divided on the issue. Several judges of this Court have stated that the
refusal of sexual advances does not constitute protected activity, see Jones v. County of Cook,
No. 01 C 9876, 2002 WL 1611606, at * 4 (N.D. Ill. July 17, 2002); Bowers v. Radiological
Society of North America, Inc,, 57 F. Supp. 2d 594, 599 (N.D. Il, 1999); Speer v. Rand McNally
& Co., No. 95 C 6269, 1996 WL 667810, at *8 n.4 (NLD. Ul. Nov. 15, 1996), Finley v. Rodman
& Renshaw, Inc., No. 93 C 5504, 1993 WL 512608, at *3 (N.D. Ill. 1993), as has one judge in
the District of Maryland, Rachel-Smith v. FTData, Inc., 247 F. Supp. 2d 734, 748-49 (D. Md.
2003), and three in New York. See Fitzgerald v. Henderson, 36 F. Supp. 2d 490, 499 (N.D.N.Y.
1998), aff'd in part, rev'd in part on other grounds, 251 F.3d 345 (2d Cir. 2001); Rashid y. Beth

Israel Medical Center, No. 96 Civ. 1833, 1998 WL 689931, at *2 (S.D.N.Y. Oct. 2, 1998); Del


Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The crux of the County’s position is
that a substantial reduction in job responsibilities does not constitute a tangible employment
action as a matter of law. The Court rejects this contention.

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 a significant change in benefits.”
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (emphasis added). The EEOC
has elaborated on this definition, explaining that “significantly changing an individual’s duties in
his or her existing job constitutes a tangible employment action regardless of whether the
individual retains the same salary and benefits.” EEOC, Enforcement Guidance: Vicarious
Employer Liability For Unlawful Harassment by Supervisors, 1999 WL 33305874, at * 5 (June
18, 1999),

Just last month, the Seventh Circuit stated that a materially adverse employment action
may occur when ““‘the employee is not moved to a different job or the skill requirements of his
present job altered, but the conditions in which he works are changed in a way that subjects him
to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alternation in
his workplace environment — an alternation that can fairly be characterized as objectively
creating a hardship, the classic case being that of the employee whose desk is moved into a
closet.” Tart v. Illinois Power Co., ~ F.3d — , 2004 WL 877580, at *12 (7 Cir. April 26, 2004)
(emphasis in original; quoting Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 744 (7
Cir. 2002)). The court noted that “a materially adverse change may be indicated by, among other

things, ‘significantly diminished material responsibilities or other indices that might be unique to


address Defendants’ arguments for judgment notwithstanding the verdict to provide guidance for
the retrial.
Discussion

We first note the appropriate standard for reviewing a motion for judgment
notwithstanding the verdict or as a matter of law. When presented with such a motion, the Court
must “examine the evidence presented, combined with any reasonably drawn inferences, and
determine whether that evidence sufficiently supports the verdict when viewed in the light most
favorable to the non-moving party.” Tincher v, Wal-Mart Stores, Inc., 118 F.3d 1125, 1129 (7
Cir. 1997) (citation omitted). The Court is limited to “assessing whether no rational jury could
have found for the plaintiff.” Emmel v. Coca-Cola Bottling Co., 95 F.3d 627, 630 (7" Cir. 1996)
(citation omitted). “A motion for judgment as a matter of law should be granted only when there
can be but one conclusion from the evidence.” Jd, at 636 (citation omitted). The Court applies
this standard in reviewing Defendants’ arguments for judgment on each count.
1. Sexual harassment

The County argues it is entitled to judgment as a matter of law on Roberts’ hostile work
environment claim because Roberts did not suffer a tangible employment action and failed to
rebut the County’s Ellerth/Faragher affirmative defense. The standard of employer liability for
sexual harassment by a supervisor depends on whether the plaintiff suffered a tangible
employment action.

An employer is subject to vicarious liability to a victimized employee for an

actionable hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee. When no tangible employment

action is taken, a defending employer may raise an affirmative defense to liability
or damages, subject to proof by a preponderance of the evidence.


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

EASTERN DIVISION DOCKET ED

SHARLA ROBERTS, MAY 1 2 2004

Plaintiff,

v Case No. 01 C 9373
COUNTY OF COOK, COOK COUNTY
OFFICE OF THE INSPECTOR
GENERAL, and TIMOTHY FLICK,
individually and in his official capacity,

eed

Defendants.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Sharla Roberts sued her employer, the County of Cook, alleging sexual harassment, sex
discrimination and retaliation in violation of Title VI and intentional infliction of emotional
distress, She also sued her supervisor, Timothy Flick, the director of Cook County’s Office of
the Inspector General, alleging a denial of equal protection in violation of 42 U.S.C. § 1983 and
intentional infliction of emotiona} distress. The Court held a jury trial starting on January 13,
2004, and the jury returned a verdict for Roberts on all but her sex discrimination claim against
Cook County. The jury awarded her $100,000 in compensatory damages as well as $400,000 in
punitive damages against Flick on the § 1983 claim.

Defendants argue they are entitled to a new trial because an evidentiary ruling was in
error. In the alternative, they request judgment notwithstanding the verdict on all counts. For the

reasons stated in open court, Defendants’ motion for new trial is granted. The Court will briefly

qr