Response Brief (Docket Entry #23-3) and Mueller’s Motion to Strike (Docket Entry #27-1) are

all denied.

NAN R. NOLAN

United States Magistrate Judge
Dated: July 14, 2003

19


Ellerth, 524 U.S. at 765. “One method of demonstrating the exercise of reasonable care is to

show the existence of an effective ‘antiharassment policy with complaint procedure.” Haugerud
v. Amery School District, 259 F.3d 678, 698 (7" Cir. 2001). There is no dispute that McGrath
had a formal sexual harassment policy that Mueller knew about and understood. The policy
instructed employees who felt harassed to “immediately notify the president, general manager or
office manager at once,” and employees were generally encouraged to contact these same
individuals to discuss any problems. Mueller does not argue that the policy was ineffective,
deficient or “merely a disguised run-around.” See Hardy, 328 F.3d at 365 (policy that
encouraged reporting of harassment and suggested various mechanisms to submit grievances was
reasonable to prevent and correct sexual harassment).

Instead, Mueller claims that McGrath did not adequately prevent Madonia’s misconduct
because (1) just a few months earlier, he harassed a co-worker named Natalie Tretyak; (2) a
former employee named Sandy Sorice complained about Madonia and a lack of training; and (3)
when Mueller told Ahiness about the harassing phone calls, Ahiness said “Oh, my God, not
again.” Pl. Mem., pp. 9, 12-13. As Mueller sees it, McGrath has disingenuously denied that
there were prior incidents of harassment and a reasonable fact finder could consider the

dealership’s dishonesty “affirmative evidence of guilt.” Jd., p. 11 (quoting Adreani v. First

Colonial Bankshares Corp., 154 F.3d 389, 395 (7" Cir. 1998)).

2 Contrary to Mueller’s suggestion, the mere fact that McGrath did not enforce its
employment application policy in hiring Madonia does not demonstrate that the harassment
policy was selectively enforced or ineffective. Pl. Mem., p. 13. Indeed, Mueller followed the
harassment policy and the dealership promptly responded to her complaint. Def. Facts [965, 118,
120, 125-27.

13


same day, Madonia left a message on Mueller’s answering machine telling her that if she had
already left, he would see her at work. Mueller confronted Madonia at work that day and he
apologized to her, stating that he had too much to drink and felt badly about his behavior.
Madonia then proceeded to leave five more telephone messages for Mueller during the evening
of August 23 and the morning of August 24, each time asking her to call him. Id. 4958-60; Pl.
Facts 95.

Mueller does not recall whether she received any training on August 23 but she does
recall being very busy due to a sales competition with another dealership. Thursday was her
regularly-scheduled day off and either that day or Friday, August 25, Madonia called her at home
and asked if she would have sex with him. Def. Facts 462-64; Pl. Facts 78.

Cc. Mueller’s Complaints to McGrath

On Saturday, August 26, 2000, Mueller complained to Druzik about Madonia’s telephone
calls. This was the first time she ever complained about Madonia to anyone at McGrath. Def.
Facts [461, 65; Pl. Resp. 4961, 65. Mueller told Druzik that she had received sexually explicit
telephone calls from Madonia and wanted them to stop. Def. Facts {{]66-67. She said that she
did not want anything to happen to Madonia and that she did not want the complaint to go any
further than Druzik, Druzik responded that he had to tefl his supervisors and that he would take
care of the problem. He asked Mueller if she would like to go home for the day but she said that
she would stay. Jd. 468, 71, 72. After receiving Mueller’s complaint, Druzik immediately
contacted McGrath, Sr. to discuss the situation, and began an investigation. Id. (976, 118, 120.

Druzik claims that he met with Madonia later that day for approximately 15 to 30 minutes

and severely reprimanded him for his conduct. At that time, Druzik says, he instituted a “zero


pressured her to write a formal complaint if she wanted training, she also admits that Ahiness
told her to think about it over the weekend. Pl. Dep., p. 173. Nevertheless, Mueller decided to
quit that Saturday without speaking further to Ahiness. And despite Ahiness’s alleged pressure,
Mueller sent her a gift and a note thanking her for being her “best cheerleader,” an “amazing
woman” and “someone [Mueller] will always look up to no matter what lies ahead.” Def. Facts
4114; DX F. The evidence is undisputed that after Mueller reported the harassment to Madonia’s
supervisor, the dealership immediately investigated the matter and the harassment stopped.
Thus, Mueller has no basis for challenging the adequacy of McGrath’s corrective measures. See
Gawley, 276 F.3d at 311 (university exercised reasonable care to prevent and correct harassment
where it “had a system in place for employees to report sexual harassment, and... as soon as
[the plaintiff] used the system, the university took action and the harassment stopped”); Mandy v.
Quad/Graphics, Inc., 49 F. Supp. 2d 1095, 1109 (ED. Wis. 1999) (“{a] stoppage of harassment
shows effectiveness, which in turn evidences . . . reasonable calculation”).

In sum, McGrath took reasonable steps to prevent and correct sexual harassment in the
workplace and has established the first requirement of its affirmative defense.

b. Mueller’s Utilization of Preventive or Corrective Opportunities

Mueller does not dispute that McGrath can establish the second element of the
affirmative defense — that she unreasonably failed to avoid or mitigate harm. Faragher, 524 U.S.
at 806-07. “The purpose of this requirement is tied to Title VII's primary objective, which is not
meant to provide redress but rather to avoid harm.” Gawley, 276 F.3d at 312. Mueller first
complained to Druzik about Madonia’s telephone calls on August 26, 2000, three days after they

started on August 23, 2000. As noted, as soon as Mueller complained, Madonia never made

17



whether it is physically threatening or humiliating or a mere offensive utterance, and whether it
unreasonably interferes with an employee’s work performance.” Quantock, 312 F.3d at 904
(quoting Murray v. Chicago Transit Authority, 252 F.3d 880, 889 (7" Cir, 2001). “[T]solated
and/or trivial remarks of a sexual nature do not satisfy the definition of sexual harassment.”
Rennie v. Dalton, 3 F.3d 1100, 1107 (7 Cir, 1993). However, “a single incident of severely
offensive conduct is a violation of Title VII.” Aguilera v, Village of Hazel Crest, 234 F. Supp.
2d 840, 846 (N.D. Ill. 2002).

In this case Mueller claims that Madonia called her at home on three occasions and said
that he wanted to “put it in her,” “f” her, and have sex with her. He also asked Mueller to spend
the night and then go to work with him in the morning. These calls were infrequent and short in
duration, and Madonia never touched Mueller, threatened her, exposed himself to her, or made
sexual comments or requests at work.’ At the same time, Madonia’s outright solicitation of sex
acts from Mueller is arguably more severe than mere “sexually suggestive” comments. See
Jarvis v. Sigmatron International Inc., 223 F, Supp. 2d 981, 986 (N.D. Ill. 2002) (explicit and
implicit sexual solicitations were more than just the “occasional vulgar banter . . . of coarse or
boorish workers”). For purposes of this motion for summary judgment, the Court will assume
that a reasonable jury could find Madonia’s direct requests for sex on two evenings sufficiently

“severe” to alter the terms and conditions of Mueller’s employment. Quantock, 312 F.3d at 904,

' Mueller makes much of the fact that on several occasions, Madonia suggested that
he provide her with training on Sunday when the dealership was closed. There is nothing in the
record to indicate that the suggestions were in any way sexual, notwithstanding Madonia’s one-
time question whether Mueller was divorced. Thus, it is not evidence of a sexually hostile work
environment. Marting v. Crawford & Co,, 203 F. Supp. 2d 958, 967 (N.D. Ill. 2002) (citing
Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345 (7" Cir. 1999)) (“the complained of
conduct must have ... a sexual .. . character or purpose to support a Title VII claim”).

9


Sorice, who worked in the finance department on a part-time basis for a short period and
ultimately left for personal medical reasons. Jd. 496, 97, 142-52. Ahlness suggested sending
Mueller to the Westmont store to receive training from another Finance Manager with a
reputation for being a good trainer. Mueller thought this was a great idea and agreed to go. Jd.
4198, 99.

At some point during the conversation, Mueller also told Ahlness that Madonia had made
a “nasty” sexual harassment call to her at home. Def. Facts {§101, 102; Pl. Resp. $101, 102.
The women have very different recollections regarding the substance of that conversation.
Mueller claims that Ahiness’s response was similar to the one she gave to the lack of training
complaint — namely, “Oh, my God, not again” — and that Ahlness asked if Madonia was drunk.
Pl. Resp. 4101. Ahlness denies making such a statement and claims that Mueller was unwilling
to elaborate on any of the details of the calls. According to Ahlness, Mueller said that she liked
Madonia and did not want him to get in trouble, and she asked Ahlness to drop the matter.
Ahlness responded that she could not ignore the complaint and asked Mueller to write out a
statement so that McGrath could investigate. Def. Facts 102-106. Mueller asserts that she told
Ahlness all about Madonia’s conduct and does not recall saying that she did not want an
investigation. Mueller claims that she felt pressured to provide a detailed account of what
happened and believed that she had to submit a written statement before she could receive the
training at Westmont. Pl. Resp. 97102, 103; Pl. Facts 431. Ahlness denies telling Mueller that

her training was conditioned on her providing a written complaint. Def. Facts 176.



tolerance” policy for Madonia and told him that he would be discharged immediately if McGrath
received another complaint of any similar misconduct. Def. Facts 4121-24. Despite this
conversation, Druzik later told Mueller to take off Monday, August 28, 2000 instead of her
regular day off on Thursday, apparently so that he could talk to Madonia again. Id. 474,75. A
few days after Druzik reprimanded Madonia the second time, McGrath, Sr. met with both men
together and severely reprimanded Madonia for his conduct. McGrath, Sr. confirmed that
Madonia would be fired immediately if the dealership received any similar complaints about him.
Id. {§125-27. Though Mueller denies it, McGrath, Sr. claims that the same day, he also spoke
with Mueller about the allegations and that she reiterated her desire to have the calls stop without
Madonia getting in trouble. Jd. 4109-10, 128-29; Pl. Resp. 4128.

When Mueller called Druzik on Monday, August 28, 2000, he told her that Madonia had
been spoken to “very strongly” and that she should come to work the next day. Def. Facts {{{77-
78. On Tuesday, August 29, Madonia ignored Mueller and would not acknowledge that she was
in the office. Id. 79; Pl. Resp. 479. He did, however, ask her to get his breakfast, coffee and
cigarettes as usual, Jd. §§82, 83. On September 2, 2000, Madonia told Mueller to take Labor
Day off of work. Mueiler said that Mulcahey was going to provide her with training that day and
that she wanted to work. Mulcahey did provide Mueller with some training on Labor Day but
she went home early because the dealership was slow. Id. {{87-89.

While working on a project with Connie Ahiness, McGrath’s Chief Financial Officer, on
Tuesday, September 5, 2000, Mueller complained about not receiving proper training from
Madonia at any time during her employment. Ahlness responded by saying, “Oh no, not again.”

Def. Facts 495, 90, 95. Madonia had previously failed to properly train an assistant named Sandy


inappropriate calls to her or sexually harassed her again. Nevertheless, on September 8 or 9,
2000, Mueller resigned. Mueller may have wanted Madonia to be transferred, Pl. Mem., p. 3, but
“it was unreasonable for her to quit her job without giving [McGrath’s] corrective measures an
opportunity” — particularly since they worked. McGowan v. Palmer House Hilton Hotel Co., No.
00 C 0733, 2000 WL 1222196, at *8 (N.D. Ill. Aug. 24, 2000).

Mueller’s decision to quit was unreasonable even if she felt that she “could not go on in
her job.” Pl. Mem., p. 14. There is no evidence of any continuing sexual harassment and, as
noted, her general job dissatisfaction is not evidence of intolerable working conditions to support
a constructive discharge. See, e.g., McGowan, 2000 WL 1222196, at *8 (employer satisfied
second element of the Ellerth/Faragher affirmative defense where employee quit without giving
employer’s corrective measures a chance); Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 496
(7* Cir. 1996) (“[d]issatisfaction with a work assignment is, as a matter of law, normally not so
intolerable as to be a basis for constructive discharge”). Thus, McGrath has successfully
established the second element of its affirmative defense.

CONCLUSION

For the reasons stated above, McGrath has established an affirmative defense to liability
under Title VII and, thus, its Motion for Summary Judgment (Docket Entry #17-1) is granted.
McGrath’s Motion to Strike Certain Paragraphs of Plaintiff’s Statement of Facts (Docket Entry
#23-2) is also granted. McGrath’s Motion to Deem as Admitted Certain Statements Contained in

Rule 56.1 Statement of Facts (Docket Entry #23-1), McGrath’s Motion to Strike Plaintiff's

18


the evidence and draw all reasonable inferences in favor of the party opposing the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Sexual Harassment Under Title VII

Title VII prohibits any workplace discrimination with respect to “compensation, terms,
conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C.
§2000e-2(a)(1); Hardy v. University of Illinois at Chicago, 328 F.3d 361, 364 (7" Cir. 2003).
Sexual harassment is a form of sex discrimination, and employers violate Title VII by permitting
a sexually hostile work environment. See Cerros v. Steel Technologies, Inc., 288 F.3d 1040,
1045 (7" Cir. 2002). To prevail on her claim of sexual harassment based on a hostile work
environment, Mueller must establish that: (1) she was subjected to unwelcome sexual advances,
requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) the conduct
was severe or pervasive enough to create a hostile work environment; (3) the conduct was
directed at her because of her sex; and (4) there is a basis for McGrath’s liability. Quantock v.
Shared Marketing Services, Inc., 312 F.3d 899, 903 (7" Cir. 2002) (citing Hilt-Dyson v. City of
Chicago, 282 F.3d 456, 462-63 (7" Cir. 2002)). McGrath challenges the second and fourth of
these elements,
B. Severe or Pervasive Conduct

To be actionable sexual harassment, conduct must be sufficiently “severe or pervasive” to
“alter the conditions of [the victim’s] employment and create an abusive working environment.”
Faragher v. City of Boca Raton, 524 U.S. 775, 785 (1998) (quoting Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986)). In making this determination, courts consider “the totality of

the circumstances, including .. . ‘the frequency of the discriminatory conduct, its severity,


Minute Order Forgery? *

BL

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
‘or Maglstrate Judge Nan R. Nolan than Assigned Judge
CASE NUMBER 02C 21 DATE 7/14/2003
CASE Mueller vs. McGrath Lexus of Chgo
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(1) im) Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due. .
(4) a) Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to} [set for/re-set for] on set for at
(6) QO Pretrial conference(held/continued to] [set for/re-set for] on set for at .
7) QO Trial(set for/re-set for] on at
(8) ia) [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (OLocal Rule 41.1 OFRCP4i(aX1) © FRCP41(a)(2).
(10) ag {Other docket entry] For the reasons stated in the attached Memorandum Opinion and Order, McGrath
has established an affirmative defense to liability under Title VII and, thus, its Motion for Summary Judgment [17-
1] is granted. McGrath’s Motion to Strike Certain Paragraphs of Plaintiff's Statement of Facts [23-2] is also
granted. McGrath’s Motion to Deem as Admitted Certain Statements Contained in Rule 56.1 Statement of Facts
[23-1], MceGrath’s Motion to Strike Plaintiff's Response Brief [23-3] and Mueller’s Motion to Strike [27-1] are
all denied. Judgment is hereby entered in favor of the defendant, McGrath Lexus of Chicago, and against Plaintiff.
(11) B {For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required.
oS | Notices mailed by judge's staff.
Notified counsel by telephone.
Docketing to mail notices.
Mail AQ 450 form. 1yunod LOyLsia sn
Copy to judge/magistrate judge. Wa)
courvoom 213S Hd 91 nr eu
cav deputy’s oe
mas O Tobit faith
central Clerk's Office mailing depuy initials



U.S. at 761 (emphasis added). Though Mueller may have found Madonia’s menial assignments
and disregard frustrating and unprofessional, “not everything that makes an employee unhappy is
an actionable adverse action.” Murray, 252 F.3d at 888.

Mueller also claims that after she complained about Madonia’s conduct, he would not
train her “or otherwise work with her to prepare her for the position of Assistant Finance
Manager, as promised when she was hired.” Cmplt. 49. It is undisputed that Mueller was hired
into the clerical position of Finance Assistant and McGrath denies that it even has an assistant
finance manager position. In any event, there is no evidence regarding the nature of the training
Mueller says she was supposed to receive or the length of time it would take her to complete it.
Mueller speculates that the training would last three months, but she quit less than four weeks
after her employment began. As a result, there is no basis for concluding that the alleged lack of
training actually had any negative impact on her advancement at the dealership. Ellerth, 524
US. at 761-62 (“tangible employment action in most cases inflicts direct economic harm”). See
also Newell v. Micro Center Sales Group, No. 02 C 2104, 2003 WL 1860272, at *3 (N_D. Ill.
Apr. 8, 2003) (in Title VII retaliation claim, “[fjailure to train could be an adverse employment
action if the failure was part of an effort to avoid promoting an employee,” but not where “the
record is silent as to any unfavorable consequence of the missed opportunity”).

Even assuming that the complained-of actions constituted tangible employment actions,
Madonia engaged in all of them both before and after he made the harassing telephone calls to
Mueller, Thus, there is no evidence that they resulted from Mueller’s refusal to have a sexual
relationship with him or her complaints about his behavior. See Martinez v. U-Haul Company of

Mlinois, Inc., No. 99 C 8066, 2001 WL 648637, at *12 (N.D. Ill. June 6, 2001) (defendant could

af


See also Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7" Cir. 1997) (“[s]ometimes we
need not decide whether particular conduct or comments crossed the line and were actionable”).
Lon McGrath’s Liability

An employer may be subject to vicarious liability for an actionable hostile environment
created by a supervisor with immediate (or successively higher) authority over the employee.
Hardy, 328 F.3d at 364; Hill v. American General Finance, Inc., 218 F.3d 639, 642 (7" Cir.
2000). If the supervisor’s harassment culminates in a tangible employment action, the employer
will always be vicariously liable for the harassment. When no tangible employment action is
taken, however, an employer may raise an affirmative defense to liability; namely, (1) that it
exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
(2) that the employee failed to take advantage of any preventive or corrective opportunities
provided by the employer to avoid harm. Faragher, 524 U.S. at 807-08; Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742, 765 (1998), Wolf v. Northwest Indiana Symphony Society, 250 F.3d
1136, 1142 (7" Cir. 2001).

1 Tangible Employment Action

Mueller argues that as a result of refusing Madonia’s requests for sex, “she was ignored,
blackballed, ostracized and outcast by Madonia.” Pl. Mem., p. 14. Mueller’s only evidence of
such treatment is that Madonia asked her to buy him coffee, cigarettes and breakfast, made her
stand outside his office and ignored her. None of these actions amounts to an adverse
employment action. “A tangible employment action constitutes 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.” Ellerth, 524

10


D. Mueller’s Decision to Quit Her Job

On September 8 or 9, 2000, Mueller called Madonia and said that she could no longer
work at McGrath because she was not being trained. Mueller then wrote a note to Ahiness
thanking her for being her “best cheerleader and someone [she] could talk to about a complicated
and nasty situation,” and stating that she would not take her complaints against Madonia any
further. Mueller also sent AhIness a book on teamwork as a gift. Def. Facts J9112-14, 116. On
September 11, 2000, Linda Yanos, McGrath's office manager, left two telephone messages for
Mueller asking that she call to discuss why she did not go to work that day. Druzik and
McGrath, Sr, left similar messages for Mueller the same day. Jd. 4133-35.

Mueller eventually spoke with McGrath, Sr. and he offered her a job selling used cars in
Westmont. According to AhIness, Mueller had mentioned an interest in getting back into sales
during their talk on September 5, 2000. Mueller insists that at all times she wanted to remain in
finance, but she told McGrath, Sr. that she was interested in the position and went for an
interview. She was offered the job but did not take it because, she says, the interviewer told her
that “women didn’t last at the [Westmont] dealership very long.” Def. Facts #9100, 136-38; Pl.
Resp. 49100, 141.

DISCUSSION

Summary judgment is proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In determining whether there is a genuine issue of fact, we view


35. The next day, Mueller again told Madonia that she was not satisfied with the level of training
she was receiving. Madonia repeated his suggestion that they meet on Sunday but Mueller
declined. Pl. Dep., pp. 87-88.

On Wednesday, August 16, 2000, Madonia was busy working with lenders from various
banks and he asked Mueller to buy him cigarettes or breakfast. In fact, Madonia asked Mueller
to get him coffee, cigarettes and breakfast several times throughout her first week of
employment. In the afternoon, Madonia provided Mueller with some computer training and then
she spent the rest of the day observing him. After a day off on Thursday, Mueller made a third
complaint to Madonia about her lack of training on Friday, August 18. Madonia once again
suggested meeting on Sunday and asked Mueller if she was divorced; Mueller once again refused
to work with Madonia alone on Sunday. Def. Facts (40-44, 49; Pl. Facts (7; Pl. Dep., pp. 93,
97. On Saturday, August 19, 2000, Mueller looked up lost files and did paperwork for the office
staff. She also bought Madonia coffee and cigarettes. Def. Facts (46-48. On August 21 and
22, 2000, Mueller renewed her complaints to Madonia about the lack of training and he told her
that he would get to it. Id. J§51-53.

B. Madonia’s Telephone Calls

Beginning at 12:11 a.m. on the morning of August 23, 2000, Mueller received two
telephone calls at home from Madonia asking her for a sexual relationship. Madonia said that he
wanted to “put it in her” and “f” her, and he offered to pay for a cab so that she could spend the
night at his place. Mueller thought Madonia sounded drunk and she told him that he was “out of
line.” She also threatened to report the calls to someone at McGrath. After the second call,

Mueller took her telephone off the hook. Def. Facts 4954-57; Pl. Facts 193, 4. At 6:49 a.m. the


As a preliminary matter, Tretyak and Sorice both deny that Madonia harassed them or
that they ever complained about harassment. According to Tretyak, Madonia asked her out for
drinks after work on a few occasions and she simply asked her friend Linda Yanos for advice
regarding how to let him know she was not interested. Def. Facts 158-67. This is not the type
of conduct that rises to the level of sexual harassment. See Weiss v. Coca-Cola Bottling Co. of
Chicago, 990 F.2d 333, 337 (7" Cir. 1993) (no actionable sexual harassment where the defendant
asked the plaintiff for dates on repeated occasions, placed “I love you” signs in her work area and
tried to kiss her twice). And there is no evidence that Sorice, who says she left McGrath for
personal medical reasons, was sexually harassed in any way. Def. Facts 146-52. Thus, neither
woman serves as an example of unchecked harassment.’ See, e.g., Poulos v. Village of
Lindenhurst, No. 00 C 5603, 2002 WL 31001876, at *9 (N.D. Ill. Sept. 3, 2002) (in §1983 case,
no evidence of widespread sexual harassment where “the only other female Village employees
who gave evidence in the case, emphatically deny that they have been harassed”).

Even assuming that Tretyak’s conversation with Yanos constituted a complaint of sexual
harassment, Mueller claims that Madonia was “reamed out” and “given an earful” for his
conduct. Mueller believes that Madonia should have been fired, transferred or suspended but the
law only requires action reasonably calculated to prevent future harassment. Pl, Mem., p. 3. See

Dominicak-Brutus v. Urban Property Services Co., 217 F. Supp. 2d 911, 917 (N.D. IIL. 2002)

3 Mueller identifies two other women she claims were harassed by Madonia ~ Janet

Garcia and Nancy Guzman. However, Mueller’s information is based on the hearsay statements
of some unidentified source and, significantly, McGrath has never had any employees by those
names. Def. Facts 4180. See Minor v. Ivy Tech State College, 174 F.3d 855, 857 (7" Cir. 1999)
(“{c]ourts must be particularly assiduous to enforce the hearsay rule in sexual harassment cases in
order to protect the privacy both of alleged victims and alleged harassers against scurrilous
rumors”).

14


theory that an employer that fails to obtain an employment application or conduct a background
check has not effectively prevented harassment under Title VII. And as for the substantive
allegations regarding Madonia’s DUI convictions and other alcohol-related incidents — all of
which occurred prior to Madonia’s employment with McGrath ~ they are not relevant to
Mueller’s claim of harassment. The mere fact that Madonia may have come to work hung over
or drunk is not, in and of itself, sufficient to put McGrath on notice that he might call Mueller at
home and ask her for sex. See, e.g., Anderson v, Leigh, No. 98 C 50169, 2000 WL 193075, at *6
(N.D. Ill. Feb. 10, 2000) (report referencing alleged harasser’s “past history” was “a far cry from
establishing that [he] had previously engaged in sexual harassment”). McGrath’s motion so
strike these references is therefore granted.

Mueller makes only a half-hearted argument that McGrath failed to take prompt
corrective action in response to her complaints about Madonia’s conduct. Specifically, Mueller,
claims that “[rJather than transferring Madonia, defendant initially suggested it would offer Ms.
Mueller finance training in another dealership,” but “[wJhen she followed up on the suggested
‘opportunity’ it tuned out the position was not in finance, but was to sell used cars and she was
told by the manager that ‘women didn’t last at the dealership very long.”” Pl. Mem., pp. 3, 15.
According to Mueller, “a rational jury might well conclude that the disciplinary action [McGrath]
imposed was not remedial or effective enough.” Jd., p. 13 (quoting Simon y, City of Naperville,
88 F. Supp. 2d 872, 877 (N.D. Ill. 2000)).

In making this argument, Mueller neglects to point out that she quit several days before
McGrath ever offered her the sales position or she allegedly Jearmed that women did not last long

at the dealership. In addition, though she makes the somewhat improbable claim that Ahlness

16


an interview with McGrath’s General Manager, Tom Druzik, and a meeting with Finance
Manager Richard Madonia, Mueller was hired as a Finance Assistant. She began working on
August 14, 2000, assisting Madonia and Will Mulcahey, McGrath’s other Finance Manager. Jd.
496, 7, 18-23.

The duties of the Finance Assistant position were clerical and included filing, answering
telephones, making calls for payoff information on finance deals, verifying customer insurance,
completing the processing of paperwork, and performing basic computer work. Def. Facts 412,
13. However, Mueller claims that Druzik told her she would also receive training to become an
assistant finance manager, She had no idea how long it would take for her to be promoted but
she guessed it would be approximately three months, Jd. 424; Pl. Resp. §§10, 24.

At the time of her hire, Mueller received a copy of McGrath’s Employee Handbook. The
Handbook contained a No Harassment Policy prohibiting sexual and other harassment in the
workplace. The policy stated that an employee who felt harassed should “immediately notify the
president, general manager or office manager at once.” In addition, the Handbook generally
encouraged employees with problems to contact any of the same individuals. Mueller
understood the policy and acknowledged that she received it. Def. Facts 4429-31.

A. Plaintiff's Employment

On her first day of work, Mueller complained to Madonia that she did not feel she
received an adequate amount of training for her Finance Assistant position. Def. Facts 933.
Madonia was very busy during the normal work day and offered to provide Mueller with training
on Sunday, a day he often worked because the dealership was closed and quiet. Mueller felt that

her training should be done during regular hours and stated that she was unavailable. Id. 4934,



ne

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

EASTERN DIVISION DOCKETED

JUL 1.7 2003
SAMANTHA MUELLER, )
Plaintiff, ,
vs. } Case No. 02 C 0021
McGRATH LEXUS OF CHICAGO, }
Defendant. }
PIN’

NAN R. NOLAN, Magistrate Judge:

Plaintiff Samantha Mueller filed a complaint against defendant McGrath Lexus of
Chicago (“McGrath”) alleging that she was sexually harassed by her supervisor in violation of
Title VII of the Civil Rights Act, 42 U.S.C. §2000e et seg. The parties have consented to the
jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. §636(c). This matter is
now before the Court on McGrath’s motion for summary judgment. For the reasons set forth
below, the motion is granted.

FACTUAL BACKGROUND

McGrath is an automobile dealership that sells and services new and used cars. It has
been in business since April 1999 and is owned by Michael McGrath, Sr. Def. Facts (43,4. On
August 6, 2000, McGrath placed an advertisement in the Chicago Tribune seeking a Finance
Assistant “to support our growing F & I [finance and insurance] department.” The ad stated that
experience was preferred but the dealership would train the right individual. Jd. 99. Mueller

responded to the classified ad and filled out an employment application on August 8, 2000. After

Ab


assert affirmative defense to sexual harassment claim because “[t]here [wa]s no evidence . . , that
(the plaintiff] suffered any adverse action as a result of the alleged harassment”) (emphasis
added).

The Court notes that in discussing the issue of a tangible employment action, Mueller
obliquely suggests that she was constructively discharged because “[a]ny prospect of a healthy
productive workplace had been tainted and she could not go on in her job” after receiving
Madonia’s calls. Pl. Mem., p. 14. A constructive discharge occurs when “an employee’s
discriminatory working conditions become so intolerable that a reasonable person in her position
would be compelled to resign.” Gawley v. Indiana University, 276 F.3d 301, 315 (7* Cir. 2001).
Mueller has in no way demonstrated that she had no choice but to quit her job, particularly since
Madonia did not engage in any sexually harassing conduct towards her at work and stopped
calling her at home once she complained. Mueller’s decision to quit her job is neither a tangible
employment action nor a separate basis for relief. Perry, 126 F.3d at 1015 (absent extraordinary
conditions, “a complaining employee is expected to remain on the job while seeking redress”).
See also Wolf, 250 F.3d at 1142 (noting the Seventh Circuit has not yet determined whether a
constructive discharge constitutes a tangible employment action under Title VII).

2. Affirmative Defense

Having determined that Mueller did not suffer a tangible employment action, the Court
next considers whether McGrath has established its affirmative defense to liability.

a Prevention and Correction
The first requirement of the affirmative defense is that McGrath took reasonable steps to

prevent and correct promptly any sexually harassing behavior. Faragher, 524 U.S. at 778;

12


(“[a]n employer informed of harassment . . . does not need to take the actions that the victim
would like him to take (e.g. suspension, termination”)); Carl v. Parmely, 188 F. Supp. 2d 991,
1006 (S.D. Ill. 2001) (“Title VIL. . . does not require an employer to remove a harassing
supervisor from his position or to closely oversee him if other reasonable measures are taken
with the aim of preventing further harassment”). Whatever action the dealership took ~ a matter
the parties dispute — it was clearly effective because Madonia never asked Tretyak out again after
he was told not to do so. Def. Facts 4165. Thus, the mere fact that Mueller was harassed after
this incident does not show that McGrath failed to take appropriate preventive measures. See
Shaw y. AutoZone, Inc., 180 F.3d 806, 812 (7" Cir. 1999) (“the law does not require success — it
only requires that an employer act reasonably to prevent sexual harassment”).

This leaves Ahlness’s alleged statement, “not again.” Mueller says the comment shows
that “[i]t happened again, a female employee had complained about sexual harassment by
Madonia and his failure to afford the female employee training and opportunity for
advancement.” Pl. Mem., p. 12. It is not clear that Ahiness actually made the statement in
response to Mueller’s claim of harassment as opposed to her complaint about a lack of training.
In any event, as explained, there is no evidence that any other women were in fact harassed so
Ahlness’s alleged statement is insufficient to show that McGrath failed to take appropriate steps
to prevent harassment in the workplace.

Mueller next claims that McGrath did not effectively prevent harassment because it did
not require Madonia to complete an employment application or undergo a background check. Pl.
Mem., p. 11. This, in turn, allegedly led McGrath to turn “a blind eye to Madonia’s easily

ascertainable record of drunken abuse.” Pl. Mem., p. 11. Mueller cites no cases to support her

15