a “continuing violation” doctrine under which an EEOC charge is
considered timely filed if the plaintiff demonstrates “that the
acts of alleged discrimination are part of an ongoing pattern of
discrimination and that at least one of the alleged discrete acts
of discrimination occurred within the relevant limitations period.”
Young v. Will County Dep’t. of Pub. Aid, 882 F.2d 290, 292 (7th
Cir. 1989).

One purpose of the continuing violation doctrine is to protect
plaintiffs who are subject to an ongoing practice of discrimination
over a period of time who can only realize they are the victim of
discrimination after a series of discrete acts has occurred. See
Jones v. Merchants Nat’l Bank & Trust Co., 42 F.3d 1054, 1058 (7th
Cir. 1994). Once the plaintiff gains such insight, the limitations
period begins to run. See id. Because Ms. Jarvis filed her EEOC
complaint on March 24, 2000 (Compl. Ex. A), it is timely only if
she knew or should have known of the ongoing pay discrimination on
or after May 29, 1999. Ms. Jarvis became aware of the
discrimination no later than the point at which Mr. Ottaviano told
her that men supporting families were paid more than she was.
Unfortunately, neither party indicates when this conversation
occurred. Because “all doubts on jurisdictional timeliness are to
be resolved in favor of trial,” Young, 882 F.2d at 292, Ms.
Jarvis’s gender discrimination claim is not barred for failure to

file a timely complaint with the EEOC.

13


56(e); see also Waldridge v. American Hoechst Corp., 24 F.3d 918,

920 (7th Cir. 1994).

II. Sexual Harassment
In order for a plaintiff to prevail on a sexual harassment
claim, she must demonstrate that: (1) she was subject to unwanted
harassment; (2) the harassment was based on sex; (3) the harassment
created an intimidating, hostile or offensive working environment;
and (4) there is a basis for employer liability. See Hall v.
Bodine Elec. Co., 276 F.3d 345, 354-55 (7th Cir. 2002). That the
first two elements of this test are met is not disputed.
A. Hostile Environment
In evaluating the third element, I look at the totality of the
circumstances, including “the frequency of the [harassing] conduct;
its severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Worth v. Tyer,
276 F.3d 249, 267 (7th Cir. 2001) (citing Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 23 (1993)). Additionally, I must examine these
factors from both a subjective and objective viewpoint, meaning
that the harassment must have been perceived by the employee as
creating an abusive environment as well as been severe or pervasive

enough that a reasonable person would find the environment hostile



only conduct of Mr. Saarnio that could possibly have contributed to
the hostile enviornment was the incident in which he reportedly
watched Ms. Jarvis bending over. Even if such conduct were
considered harassment, it is not sufficient to trigger application
of the strict liability standard. See Wilson v. Chrysler Corp.,
172 F.3d 500, 508-09 (7th Cir. 1999) (act of four supervisors
signing a lewd greeting card held insufficient to trigger strict
liability where thirty-four non-supervisory employees signed card
and non-supervisors were responsible for “the lion’s share” of the
harassment).
2. Liability for Harassment by Coworkers

An employer is liable for harassment by coworkers only when it
has been “negligent either in discovering or remedying the
harassment.” Parkins, 163 F.3d at 1035. Notice or knowledge by
the employer of the harassment is a prerequisite for liablity. See
id. “{A] plaintiff cannot withstand summary judgment without
presenting evidence that she gave the employer enough information
to make a reasonable employer think there was some probability that
she was being sexually harassed.” Id. (internal quotation
omitted).

Here, Ms. Jarvis states that she complained to Mr. Maberry

specifically about the conduct of Mr. Colbert (Jarvis Dep. at



Co., 10 F.3d 526, 534 (7th Cir. 1993) (citing Harris, 510 U.S. at
11). Further, the consideration of interference with performance
“[is] not intended to penalize the employee who possesses the
dedication and fortitude to complete her assigned tasks even in the
face of offensive and abusive sexual banter. . .. [T]Jhat women who
are the objects of discriminatory behavior because of their sex are
able to maintain satisfactory job performance is not grounds for
denigrating their concerns.” Dey, 28 F.3d at 1454-55 (internal
citations omitted). The fact that Ms. Jarvis’s job performance did
not suffer as a result of the harassment is not evidence that she
did not subjectively perceive her work environment as hostile.
2. Objective Viewpoint

The Seventh Circuit has noted that drawing the line between
sexual harassment and nonactionable workplace vulgarity is not
always easy. See Baskerville v. Culligan Int’l Co., 50 F.3d 428,
430 (7th Cir. 1995).

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.
Id. (internal citations omitted). In that case, the court found
that a supervisor’s behavior did not constitute harassment because

he never touched the plaintiff, never explicitly or implicitly

invited her to have sex with him or to go out with him, never



or abusive. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454
(7th Cir. 1994) (citing Harris, 510 U.S. at 21-22).
1. Subjective Viewpoint

Ms. Jarvis states that because of Mr. Colbert’s behavior, she
tried to avoid him. (Jarvis Dep. at 135). She also states that she
complained to Mr. Maberry about offensive conduct and comments.
(Jarvis Dep. at 149-50, 154.) Finally, she states that prior to
quitting, she had wanted to leave SigmaTron every day. (Jarvis
Dep. at 211.) This evidence is sufficient to create a factual
issue on the question of whether Ms. Jarvis subjectively perceived
her work environment to be hostile. See Dey, 28 F.3d at 1454
(deposition testimony of plaintiff stating that superior’s conduct
upset and embarrassed her and,made her feel uncomfortable, that his
comments caused her to walk out of his office, that she just wanted
comments to stop, and that she complained to supervisor held
sufficient to create a factual issue as to subjective perception of
hostile environment).

SigmaTron argues that because Ms. Jarvis admits she fully
performed her duties during her time at SigmaTron (Jarvis Dep. at
52-53), the harassment had no effect on her work performance and
thus does not rise to the level of a Title VII violation. While
interference with work performance is certainly one of the factors
to consider when analyzing the severity of workplace harassment,

“no single factor is required.” Saxton v. American Tel. and Tel.



eat, he bet she tasted good, and he dreamed about her coming out of
the shower). These acts of physical contact and sexual
solicitation constitute more than just “the occasional vulgar
banter. . . of coarse or boorish workers.” Baskerville, 50 F.3d at
430.
B. Employer Liability

In determining that the harassment to which Ms. Jarvis says
she was subjected was severe or pervasive enough to constitute an
objectively hostile environment, I did not distinguish between
conduct of her superiors and conduct of her coworkers. See Mason
v. Southern Illinois Univ. at Carbondale, 233 F.3d 1036, 1044-45
(7th Cir. 2000). The distinction is relevant for determining
employer liability, however. See Parkins v. Civil Constructors of
Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). When the
harasser is a supervisor, the employer is strictly liable for the
supervisor’s conduct, subject to an affirmative defense. See id.
(citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).
When the harasser is a coworker, the employer is liable only for
negligence in discovering or remedying the harassment. See
Parkins, 163 F.3d at 1032.

1. Liability for Harassment by Supervisors

The only two alleged harassers here who could arguably be

called supervisors are Mr. Ottaviano and Mr. Saarnio. As noted

above, Mr. Ottaviano’s conduct was not actionable harassment. The


‘Minute Order Form (06/97)

United States District Court, Northern District of Dlinois

Name of Assigned Judge i Sitting Judge if Other
or Magistrate Judge Elaine E. Bucklo than Assigned Judge
CASE NUMBER 01 C 3883 DATE 9/26/2002
CASE Jarvis vs. Sigmatron
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.]
DOCKET ENTRY:
(05) gq 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) o Ruling/Hearing on set for at
(5) o Status hearing[held/continued to} [set for/re-set for] on set for at
(6) im Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(a) o Trial[set for/re-set for] on. at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) oOo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (Local Rule 41.1 CIFRCP41(a\(1) COFRCP41(a)(2).
ao @f [Other docket entry] Enter Memorandum Opinion and Order granting defendant’s motion for summary
judgment (13-1) with respect to the harassment claim and denying it as to Ms. Jarvis’ Title VII claim. Defendant’s
motion to strike (36-1) is denied as moot. Defendant’s motion to bar (30-1) testimony of plaintiff's witness Dr.
Richard Elghammer is denied as moot with the condition that if, contrary to my belief, he would still be expected
to testify on the limited issues left in the case, the parties shall let me know within two weeks and I will consider
the motion. Ruling on that motion set for 10/4/02 is vacated. Parties’ joint motion for extension of time is denied as moot.
(1) [For further detail see order attached to the original minute order.)
‘No notices required, advised in open court.
‘No notices required.
a | Notices mailed by judge's staff.
~ | Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.
1y ! a
Copy to judge/magistrate judge. Nag poe SIa"s'n
urtroor LeiS us cues.
MP} deputy's Baha CS Ys 29
initials
Date/time recelved'in’ _:
central Clerk's Office ~ _maiing deputy initials



case, she admits that Mr. Colbert did “not really” bother her
again. (Jarvis Dep. at 155.) Likewise, Ms. Jarvis states that
after she complained to Mr. Maberry about Mr. Anthanailos, Mr.
Maberry spoke to Mr. Ottaviano and made sure that Ms. Jarvis would
not have to work with Mr. Anthanailos. (Jarvis Dep. at 167-68.)
As a result, Mr. Anthanailos “(p]retty much for the most part”
stayed away from Ms. Jarvis. (Jarvis Dep. at 168.) These
responses by Mr. Maberry to Ms. Jarvis’s complaints are completely
reasonable, and preclude a finding of negligence on the part of
SigmaTron. See McKenzie, 92 F.3d at 480-81 (affirming summary
judgment for an employer where an employee’s direct supervisor
responded to her complaints of sexual harassment by asking the
harasser to work things out with the employee and reporting the
complaint to his own supervisor, and where the employer ensured
that there would be no further contact between the employee and the
harasser and issued a memo to all employees regarding the
employer’s sexual harassment policy). Thus, SigmaTron cannot be
held liable for the hostile workplace environment created by Ms.
Jarvis’s coworkers.
III. Gender Discrimination

Ms. Jarvis also alleges in her complaint, under both Title VII
and the Equal Pay Act, that she did not receive pay increases and
promotions because of her sex. While she has dropped her Equal Pay

Act claim, she continues to pursue the claim under Title VII.

11


41 150, 154-55) and Mr. Anthanailos (Jarvis Dep. at QW 167-68) .°
According to the SigmaTron sexual harassment policy, reporting
harassment to her immediate supervisor was the appropriate course
of action for Ms. Jarvis. (Fairfeld Aff. Ex. A.) Even if Ms.
Jarvis was unaware of the official policy, she could reasonably
believe that her immediate supervisor was the proper party to whom
to report coworker harassment. Complaining to Mr. Maberry about
the conduct of Mr. Colbert and Mr. Anthanailos was thus sufficient
to put SigmaTron on notice that there was some probability that Ms.
Jarvis was being harassed. See Parkins, 163 F.3d at 1035 (to put
employer on notice of harassment, employee should complain to a
“point person” designated by employer policy to accept complaints,
or someone the employee “reasonably believe[s] [is] authorized to
receive and forward (or respond to) a complaint of harassment”).
While Ms. Jarvis presents sufficient evidence that SigmaTron
was on notice of harassment by coworkers, she must also show that
SigmaTron “fail[ed] to take appropriate remedial action.” McKenzie
v. Illinois Dep’t of Transp., 92 F.3d 473, 480 (7th Cir. 1996).
Here, Ms. Jarvis states that she complained twice to Mr. Maberry
about Mr. Colbert’s conduct, and that following the second
complaint, she believes Mr. Maberry spoke either to Mr. Ottaviano,

or directly to Mr. Colbert. (Jarvis Dep. at 152-55.) In either

3 Ms. Jarvis states that she did not complain to superiors
about the conduct of Mr. Navarette (Jarvis Dep. at 179-80) and Mr.
Cool (Jarvis Dep. at 176).

10


threatened her, exposed himself, showed her dirty pictures or said
anything to her that could not be repeated on television. See id.
at 431.

In contrast, much of the conduct alleged by Ms. Jarvis falls
on the other side of the line. While Mr. Ottaviano’s touching does
not constitute actionable sexual harassment because it was done
without sexual intent or innuendo,* see Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 463 (7th Cir. 2002) (acts of rubbing back
and squeezing shoulder that involved no threats, intimidation, or
humiliation not actionable harassment), Ms. Jarvis was subject to
repeated nonconsensual physical contact from Mr. Colbert. Mr.
Colbert’s contact included the occasional touching of Ms. Jarvis’s
breast, “one of the most severe forms of sexual harassment.”
Worth, 276 F.3d at 268. Ms. Jarvis was also subject to explicit
sexual solicitations from Mr. Colbert (he would like to take her
home, “he could make [her] feel good all night long,” and that
“[he]‘’d do her if [she] didn’t have a boyfriend”), and implicit

sexual solicitations from Mr. Navarette (she smelled good enough to

2 Ms. Jarvis admits SigmaTron’s statement that Mr. Ottaviano’s
touching “was done strictly as a friendly gesture, with no sexual
intent or attempted sexual innuendo.” (Pl.’s Resp. to Def.’s
Statement of Facts @ 35.) Ms. Jarvis is bound by this admission,
despite her claim in her own statement of facts that she believed
Mr. Ottaviano’s touching was sexually motivated (Pl.’s Statement of
Facts {1 26). See Midwest Imps., Ltd. v. Coval, 71 F.3d 1311, 1316-
17 (7th Cir. 1995) (requiring strict compliance with Local Rule
56.1(b) (formerly rule 12(N)), which provides the only acceptable
means of disputing an opposing party’s facts).

7



repeatedly referred to women as “stupid” and “worthless,” and that
he told her that she “could make more money standing on the
corner.” (P1.’s Supplemental Resp. to Interrog. No. 8.)

Ms. Jarvis also states that she was denied promotions and pay
raises (Pl.’s Mem. in Opp’n. to Mot. for Summ. J. at 17), and that
Mr. Ottaviano once told her that men supporting families were paid
more than she was and that she was paid less because she lived with
her mother (Jarvis Dep. at 8-9.). She resigned on February 14,
2000.

Summary judgement is proper when “there is no genuine issue as
to any material fact and... the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c)s see also
Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir.
1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). In determining whether a genuine issue of material fact
exists, I “construe all facts in the light most favorable to the
nonmoving party and draw all reasonable and justifiable inferences
in that party’s favor.” Popovits, 185 F.3d at 731 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). While I apply
this standard with particular care in employment discrimination
cases, see Adusumilli v. City of Chicago, 164 F.3d 353, 360-61 (7th
Cir. 1998), the non-moving party “must set forth specific facts

showing that there is a genuine issue for trial.” Fed. R. Civ. P.



Iv. Conclusion
SigmaTron’s motion for summary judgment is GRANTED with respect

to the harassment claim. It is denied as to Ms. Jarvis’ Title VII

claim.
ENTER ORDER:
Byrn 2 Buhl
Elaine E. Bucklo
United States District Judge
Dated: September 26, 2002

14



Dave Cool, Miguel Navarette, and Nick Anthanailos were coworkers
with no supervisory authority over Ms. Jarvis.

Ms, Jarvis refers to multiple incidents of harassment while at
SigmaTron. She states that Mr. Ottaviano was constantly touching
her shoulder, back, sides, and occasionally her hip. (Jarvis Dep.
at 171-73.) On her last day of work, he pulled her hair, and Mr.
Cool poked her in the buttocks. (Pl.’s Supplemental Resp. to
Interrog. No. 8.)

She refers to an incident in which Mr. Cool told her that Mr.
Saarnio “watched [her] bend over looking through the box.” Mr.
Cool went on to say “I would have said something but I was watching
too.” (Pl.’s Supplemental Resp. to Interrog. No. 8.)

Ms. Jarvis states that Mr. Colbert asked her out on a date
three or four times (Jarvis Dep. at 136), that he told her he would
like to take her home and “he could make [her] feel good all night
long” (Pl.’s Supplemental Resp. to Interrog. No. 8; Jarvis Dep. at
138), and that “[he]’d do her if [she] didn’t have a boyfriend”
(Pl.’s Supplemental Resp. to Interrog. No. 8). She also states
that Mr. Colbert would grab her and squeeze her and try to touch
her chest, which on occasion he did (Jarvis Dep. at 143-44).

Finally, she states that Mr. Navarette told her that she
smelled good enough to eat, that he bet she tasted good, and that
he dreamed about her coming out of the shower. (P1l.’s Supplemental

Resp. to Interrog. No. 8.) She also states that Mr. Anthanailos



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

DOCKETED
RUTHIE JARVIS, SEP 95 2an2
Plaintiff,

Vv.

SIGMATRON INTERNATIONAL INC., a No. 01 C 3883

Delaware Corporation,

Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Ruthie Jarvis sued her employer, defendant SigmaTron
International Inc. (“SigmaTron”) for sexual harassment and
discrimination in violation of Title VII, 42 U.S.C. § 2000e et

7 sigmaTron now moves for summary judgment. I grant the

seq.
motion with respect to the harassment claim and deny it as to Ms.

Jarvis’ Title VII claim.

I. Background
Ms. Jarvis was hired by SigmaTron in 1997 as a programmer.
Her immediate supervisor was Todd Maberry. Vince Ottaviano was

another supervisor, and above them was Andy Saarnio. Dave Colbert,

1 Ms. Jarvis also included a count in her complaint alleging
violation of the Equal Pay Act, 29 U.S.C. § 206(d). She has

voluntarily dismissed that count.



SigmaTron seeks summary judgment on this claim as well. However,
it fails to support this part of its motion with evidence to
dispute Ms. Jarvis’ claim. Thus, while the statements referred to
in Ms. Jarvis’ response (such as, a statement by a supervisor that
men are paid more because they have families) would not be
sufficient to sustain her claim in the presence of objective
evidence that men with comparable positions in fact were paid
equally, SigmaTron’s bare claims, unsupported by record evidence,
that anyone paid more either had greater duties or experience,‘ and
its statements that Ms. Jarvis in fact received promotions and pay
increases is insufficient in itself to require a response by Ms.
Jarvis. Its motion for summary judgment on Ms. Jarvis’ Title VII
claim is therefore denied.

SigmaTron argues that part of Ms. Jarvis’ claim with respect
to pay is time-barred because in Illinois, a state with an agency
designated for consideration of discrimination claims, a Title VII
claimant has 300 days after a discriminatory act to file a charge
with the EEOC. See 42 U.S.C. 2000e-5(e) (1); Winters v. Iowa State
Univ., 768 F. Supp. 231, 237 (N.D. Ill. 1991) (Shadur, J.), aff'd,
962 F.2d li (7th Cir. 1992). Failure to do so is fatal. See

Winters, 768 F. Supp. at 237. The Seventh Circuit has recognized

4 SigmaTron’s affidavit documents pay received by various
people. No record evidence supports its further statements
regarding why certain people deserved higher pay than that received
by Ms. Jarvis.

12