failed to promptly take advantage of it. Kopczyk contends that summary judgment is not
warranted because she was not aware of the existence of Amphenol’s anti-harassment policy
until after she began her leave of absence. The Supreme Court has distinguished between hostile
work environment cases in which the supervisor takes a tangible employment action against the
subordinate and those in which the supervisor does not. Burlington Indus., Inc. v. Ellerth, 524
USS. 742, 760-65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). In the
absence of a tangible employment action, a defending employer may raise an affirmative defense
to show (1) that it exercised reasonable care to prevent and correct promptly any sexually
harassing behavior, and (2) that the plaintiff failed to take advantage of any preventive or
corrective opportunities provided by her employer or to otherwise avoid harm. See Molnar v.

Booth, 229F 3d 593, 600 (7th Cir. 2000)(citing Ellerth, 524 U.S. at 765).
1. Tangible 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.” See Hardy, 328 F.3d at
364(citing Ellerth, 524 U.S. at 761); see also Molnar, 229 F.3d at 600(citing Ellerth, 524 U.S. at
761). A materially adverse change might be indicated by a termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices that might be

unique to a particular situation. See Ribano v. United Airlines, Inc., 200 F.3d 507, 511 (7th Cir.
1999)(citing Crady v. Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir 1993).
Kopezyk argues that in 2001 an Amphenol supervisor took tangible employment action
against her by asking her where she was going as she was headed to the bathroom. Kopezyk
maintains that the supervisor then asked her why she was going to the bathroom and proceeded to

4



Ehling’s original notes is also without merit. The summaries are just that - a summary of the
interview. A review of Holcombe’s deposition and Ehling’s original notes reveal that the
summaries are not unreasonable and do not misrepresent or delete any information material to
the investigation. (Compare: Pl’s Ex. 5 p.0490.1 & Def.’s Ex. 5; Holcombe Dep. p. 18 -33 &
Def. Ex. 6)

The result of Amphenol’s investigation reveals that Kopezyk’s allegations of sexual
harassment were denied by her fellow employees. (Pl. Ex. 6) The investigation did reveal that
on some occasions a fellow employee or supervisor would put his hand on her shoulder to get her
attention because she was listening to music with headphones on her ears and on one occasion a
manufacturing process engineer put his hand on Kopezyk’s shoulder when he noticed she was
visibly upset and told her, “everything will be okay.” (Def.’s Ex. 6,7,8, Pl.’s Ex. 6) Amphenol
notified Kopezyk of the result of the investigation in a letter dated October 17, 2001. Although
the investigation did not find any wrongdoing on the part of any of the employees, supervisors, or
management personnel at Amphenol, the company went a step further by conducting an
employee sensitivity training seminar for the prevention of sexual harassment with all of it’s
employees. (Pegues Dep. p. 17-18; Abelson Dep. p. 12) Furthermore, even though Amphenol
did not find any sexual harassment on the part of Holcombe (a FOP production manager);
Vujovic (a FOP production supervisor); and Keifer, (a manufacturing process engineer), the
company nonetheless issued warnings to all three so as to ensure that no incidents such as the
ones alleged occur in the work place environment. (Pl. Ex. 6) Thus, the record reflects that
Amphenol had in place an investigation process, did act promptly, found no sexual harassment
had taken place, but at the same took remedial action to educate its workforce and issued

warnings to its supervisors in its effort to preserve a sexual harassment free work environment.

Accordingly, we find that no reasonable jury could find that Amphenol’s investigation or

oe



board and on its general information board. Amphenol supports this contention through an
affidavit of Abelson, Amphenol’s FOP general manager, who swears that the Policy has been in
those locations since he began working there in 1999. (Def.’s Rule 56.1: D; Abelson Dep. p. 17,
78) In addition, Joan Pegues (“Pegues”), an Amphenol employee and a co-worker of Kopcezyk,
stated in her March, 11, 2003 deposition that a sexual harassment policy has been posted on a
bulletin board at Amphenol for the last twelve or thirteen years. (Pegues Dep. p. 13-15; Def.’s
Ex. 9)

Kopezyk argues that she was not aware of the Policy until after Amphenol began it’s

investigation. Kopczyk further denies that the Policy had been posted on a bulletin board at the
employee lunchroom at Amphenol. However, in her deposition Kopczyk admits that the Policy
could have been posted on the bulletin board, but that she didn’t see it. (Kopezyk Dep. p. 73 )

Kopezyk argues that Amphenol failed to have any training on it’s sexual harassment
policy until after Kopezyk began her leave of absence. The evidence reflects that while Kopezyk
was on leave, Amphenol conducted an employee sensitivity training for the prevention of sexual
harassment with all of it’s employees. (Pegues Dep. p. 17-18; Abelson Dep. p.12) Amphenol
conducting sensitivity training does not diminish the fact that the Policy was already in place and

posted in the Amphenol employee lunchroom.

Based upon the affidavits, depositions, and Rule 56.1 facts produced by both parties, the
evidence supports the conclusion that the Policy existed and was posted since at least 1991 ona
bulletin board in an area open to everyone at Amphenol - the employee lunchroom. Therefore,
we find that no reasonable jury could find that Amphenol’s Policy was unreasonable or not

sufficiently disseminated to its employees.

Kopczyk next challenges the reasonableness of Amphenol’s response, investigation, and

remedy imposed as a result of her sexual harassment claims. Kopezyk asserts that Amphenol’s

6


point at his watch. Kopczyk further states that this same supervisor would at times whistle at her
to get her attention and sometimes point at her to return to her desk. Standing alone, or together,
these allegations to do not meet the test set forth in Ellerth. 524 U.S. at 761; see also Ribano,
200 F.3d at $11; Crady, 993 F.2d at 136. Although Kopezyk was terminated from her
employment with Amphenol, she admits this was due to her failure to return to work upon.
conclusion of a leave of absence. (Pl.’s Resp. to Def.’s Rule 56.1: No. 11) Thus, Kopezyk was
not subject to a materially adverse change in her employment. Therefore, we find that no

reasonable jury could find that Kopezyk suffered a tangible employment action by Amphenol.
i. Ellerth/Faragher Affirmative Defense

In the absence of a tangible employment action, Amphenol is entitled to an affirmative
defense of liability if it can show (1) that it exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (2) that the plaintiff failed to take advantage of
any preventive or corrective opportunities provided by her employer or to otherwise avoid harm.

Ellerth, U.S. 524 at 765; Faragher, 524 U.S. at 807.
First Prong

Kopezyk contends that Amphenol cannot satisfy the first prong of the Ellerth/Faragher
defense on a number of issues. Kopezyk first challenges the reasonableness of Amphenol’s
sexual harassment policy and whether it was sufficiently disseminated. An employer may
provide a proven, effective mechanism for reporting and resolving complaints of sexual
harassment, available to the employee without undue risk or expense. Faragher, 524 U.S. at
806. The Amphenol FOP one page Anti-Harassment / Non-Discrimination Policy (“Policy”)
provides it’s employees with a detailed and instructive mechanism for reporting and resolving
complaints of sexual harassment with its Human Resources Department. (Def.’s Ex. 2)

Amphenol maintains that a copy this Policy was posted on it’s employee lunchroom bulletin

5



56.1: 14, 15, 21, 22) Kopczyk’s lawyer sent the claim letter to Amphenol on September 26, 2001
and on October 2, 2001 representatives from Amphenol were meeting with Kopczyk to conduct a
formal investigation. (Def.’s Ex. 5-8) The record reflects that Kopezyk did not report the
alleged incidents immediately. Instead she waited until years later, after she began a leave of
absence, to report the alleged conduct. The record also reflects that when Amphenol did become
aware of her allegations on September 26, 2001, they immediately took steps to conduct an
investigation. Therefore, we find that no reasonable jury could find that Amphenol did not
promptly address Kopczyk’s allegations.

Kopcezyk also challenges the sufficiency of Amphenol’s investigation and remedy.
However, Amphenol’s investigation in response to Kopezyk’s claims was well documented and
conducted professionally. Abelson headed the investigation and was assisted by Scott Ehling of
the Human Resources Department. (Abelson Dep. p. 21) After initially interviewing Kopezyk,
Amphenol conducted an interview and prepared three separate summary reports on the
individuals accused of the harassment - Holcombe, Vujovic, and Keifer. (Def.’s Ex. 5-8) In
addition, Abelson and Ehling interviewed and prepared a summary report of Kopczyk’s co-

employee, Joan Pegues. (Def.’s Ex. 9)

The law does not require success, but only requires that an employer act reasonably to
prevent sexual harassment. See Hardy v. University of Mlinois at Chicago, 328 F.3d 361, 365 (7
Cir. 2003)(citing Shaw v. Auto Zone, Inc. 180 F.3d 806, 812 (7th Cir. 1999). Although, it is
apparent that Amphenol issued it’s findings to Kopezyk before it had interviewed Keifer, we find
that Amphenol could have reasonably concluded - as does this court - that the Kiefer summary
would not have warranted a material change in the result of the Kopczyk investigation. (Def.’s
Ex. 8; Pl.’s Ex. 6) Furthermore, Kopczyk’s attempt to discredit the record found in the

Amphenol summaries in comparison to Holcombe’s subsequent deposition testimony and



Minute Order Form (06/97)

OS Ny United States District Court, Northern District of Illinois

—V
Mr MagiteeteJudge | Samuel Der-Yeghiayan | SNaigned Judge
CASE NUMBER 02 C 7132 DATE 10/22/2003
CASE Kopezyk vs. Amphenol
TITLE
[In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]
DOCKET ENTRY:
qQ a Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) ao Answer brief to motion due__. Reply to answer briefdue__.
(4) is] Ruling/Hearingon__—_setfor___at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor___—__ at.
(6) Qo Pretrial conference[held/continued to] {set for/re-set for]on__—setfor_ sat.
(7) o Trial[set for/re-set for]on__at
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__—__at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) OLocal Rule 41.1 COFRCP41(a)(1) OO FRCP41(a)(2).

(10) Hi [Otherdocketentry) Status hearing held. This matter is before the Court on defendant’s motion for
summary judgment. For the reasons stated on the attached memorandum opinion, the Court hereby grants
the defendant’s motion for summary judgment. All pending dates and motions are hereby stricken as
moot. Terminating case.

(11) For further detail see Memorandum Opinion attached to the original minute order.
‘No notices required, advised in open court.

No notices required, umber of notices

rOCT:2.3

dite docs

Notices mailed by judge's staff.
Notified counsel by telephone.
a | Docketing to mail notices.
Mail AO 450 form.

' alt
Copy to judge/magistrate judge. 4ynoa t
courtroom ez Hd 22 15060
MW deputy’s _
initials — —e
Qivis i Date/time-seceived in
centéal Cletk’s Office



argument is without merit for the following reasons: (1) the harassment she alleges dates back to
years before the brief vacancy in the Human Resources Department Personnel Position in 2001;
(2) Kopezyk contradicts herself because she has already admitted that her delay in reporting the
harassment was based on a fear she may lose her job and not on a contention that she would have
if the Human Resources position was not vacant for a brief period; (3) Kopezyk fails to present
evidence indicating that she ever attempted to fepor her claims to the Human Resources
Department or to anyone in management at ‘ny time prior to September 26, 2001; and (4) It is
undisputed that Kopczyk’s visit to the Human Resources Department on August 24, 2001 was to
make arrangements for her leave of absence - Yet, at that same visit, while she was meeting with
a representative from Human Resources, she failed to mention any of the alleged harassment she

was experiencing. (Compl. p. 2; Kopezyk Dep. p. 66-67; Def.’s Ex. 9; Pl.’s Rule 56.1: 36-37)

As we have discussed above in the first prong analysis, Kopczyk’s confiding in Pegues, a
non-supervisor, does not amount to taking reasonable steps to notify Amphenol. In addition,
Kopezyk failed to take advantage of any of the preventive or corrective opportunities provided by
Amphenol’s Policy and failed to report her allegations through the proper channels.. Therefore
we find that no reasonable jury could find that Amphenol did not satisfy the second prong of the
Ellerth/Faragher affirmative defense. See Ellerth, 524 U.S. 765 (stating that an unreasonable
failure to use any complaint procedure provided by the employer “will normally suffice to satisfy
the employer’s burden under the second element of the defense”). Amphenol has shown that
there is no genuine issue as to any material fact and as a matter of law is entitled to judgment

under the Ellerth/Faragher affirmative defense.

11



remedy were not reasonable.

Therefore, we find that Amphenol has satisfied the first prong of the Ellerth/Faragher
affirmative defense by proving that it exercised reasonable care to prevent and correct promptly
any sexually harassing behavior in it’s work environment. Burlington Indus., Inc. v. Ellerth, 524

US. 742, 760-65 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Second Prong

Kopczyk contends that Amphenol cannot satisfy the second prong of the
Ellerth/Faragher defense because she was not aware that a Policy existed until after she began
her leave of absence. Amphenol argues that Kopezyk delayed in reporting her claims to Human
Resources and unreasonably failed to take advantage of the preventative and corrective

opportunities provided by Amphenol.

To satisfy the second prong of the Ellerth/Faragher affirmative defense, Amphenol must
show that Kopczyk failed to take advantage of any preventive or corrective opportunities
provided by Amphenol or to otherwise avoid harm. Ellerth, 524 U.S. at 765; Faragher, 524 U.S.
at 807. This Court has already found that the Policy has been posted at Amphenol since at least
1991. Kopezyk failed to notify Amphenol until September 26, 2001, despite the fact that the
alleged harassment had been ongoing for years. (PI.’s Rule 56.1: 36, 37) Moreover, Kopezyk
does not present a genuine material issue that she ever attempted to report the alleged harassment
to Human Resources at any time before September 26, 2001. Her delay in reporting the

harassment is unreasonable.

Kopczyk argues that even if she wished to report the sexual harassment to the Human
Resources department in 2001, she could not do so because the Human Resources Department

Personnel Position was temporarily vacant during a brief period of that year. Kopczyk’s

10

Fr

ra



response to her sexual harassment claims was not reasonable because Amphenol had constructive
knowledge of the alleged harassment before her lawyer sent the claim letter to Amphenol on

September 26, 2001.

Kopezyk maintains that she reported some of the alleged incidents of harassment to
Pegues as early as 1995, Pegues is a co-employee of Kopezyk at Amphenol and holds a title
referred to as a “group leader” or a “lead” person. Kopczyk states that several of the incidents of
harassment she allegedly endured were witnessed by Pegues. According to Pegues, a group
leader’s responsibility is to assist people with their work, provide work to them, and prepare jobs
for them. (Pegues Dep. p. 8) Kopezyk admits that a lead person is not the same as a supervisor.
(Kopezyk Dep. p. 65)

The Policy in place instructs Amphenol employees experiencing harassment to report
such incidents to Human Resources immediately. (Def.’s Ex. 2) Kopezyk maintains that she
was afraid to go to Human Resources because she feared she would lose her job. (Kopezyk Dep.
p. 66-67) However, an employee’s apprehension to report the harassment does not eliminate the
tequirement that the employee report the harassment. Hill v. Am. Gen. Fin., Inc., 218 F.3d 639,
644 (7th Cir. 2000). Kopcezyk incorrectly assumed that by confiding her allegations to Pegues
she was somehow relieved of her duty to report these allegations to Human Resources. (Kopezyk
Dep. p. 66) Pegues, on two separate occasions, told Kopezyk that if something was bothering her
she should report the allegations to Human Resources because it was the proper step to take.
(Pegues Dep. p. 26, 32; Def.’s Ex. 9) Furthermore, Kopczyk states that she wasn’t sure if she
wanted Pegues to report the incidents of harassment and admits that she did not tell Pegues to
report them. (Kopezyk Dep. p. 69-70)

The other witnessed incidents Kopezyk refers to in her response do not support a finding
that the harassment Kopezyk alleges was well known throughout the FOP Facility. (Pl.’s Rule

7


material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 US. 574, 586
(1986). Rather, a genuine issue of material fact exists when "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson y. Liberty Lobby, Inc.,
477 US. 242, 248 (1986); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The
court must consider the record as a whole in a light most favorable to the nonmoving party and
draw all reasonable inferences that favor the nonmoving party. Anderson, 477 U.S. at 255; Bay

v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

DISCUSSION
Title VII forbids any workplace discrimination with respect to “compensation,
terms, conditions, or privileges of employment because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A court determines whether
an environment is hostile or abusive by looking at all the circumstances. Gleason v. Mesirow

Finacial, Inc. 118 F.3d 1134, 1143 (7" Cir.1997)(quoting Harris v. Forklift Sys. Inc., 510 US.
17, 23 (1993). In its analysis, the court will consider "the frequency of the discriminatory
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.” Harris,
510 U.S. at 23, An employer may be subject to vicarious liability to a victimized employee for
an actionable hostile work environment created by a supervisor with immediate (or successively
higher) authority over the employee. Hardy v. University of Illinois at Chicago, 328 F.3d 361,
364 (7" Cir. 2003)(citing Hill v. Am. Gen. Fin., Inc., 218 F.3d 639, 642 (7" Cir. 2000).

Amphenol asserts an affirmative defense and argues that summary judgment as a matter

of law is appropriate because Amphenol had in place an anti-harassment policy and Kopezyk



from work. On or about September 26, 2001, Kopezyk, through her lawyer, notified Amphenol’s
Human Resources Department by letter of a claim of sexual harassment against Amphenol.
Amphenol immediately began an investigation into Kopcezyk’s claims. The investigation was
conducted by Stuart Abelson (“Abelson”), Amphenol’s FOP general manager, and Mr. Scott
Ebling (“Ehling”) of Amphenol’s FOP’s Human Resources Department. The investigation found
no merit in Kopezyk’s claims. Kopczyk’s leave of absence ended on October 4, 2002 and her
employment was thereafter terminated due to her failure to return to work. Kopezyk brought a
hostile work environment claim and alleges she has been sexually harassed in the workplace in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 20006 ef seq.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of
summary judgment the moving party must identify “those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be
satisfied by presenting specific evidence on a particular issue or by pointing out “an absence of
evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325. Once the movant
has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings,
but, “by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing
that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). A “genuine issue” in the context

of a motion for summary judgment is not simply a “metaphysical doubt as to the



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRYSTYNA U. KOPCZYK,
Plaintiff,
No. 02 C 7132

ve

AMPHENOL CORPORATION,

wevenvernerervervw

Defendant.

MORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the Court on Defendant Amphenol Corporation’s (“Amphenol”)
NOCKETFA
OCT 23 2003 .

motion for summary judgment. For the reasons stated below we grant the motion.

BACKGROUND

Amphenol is a Delaware corporation which operates a Fiber Optics Products Division
(“FOP”) in or near Lisle, Ilinois. Plaintiff Krystyna U. Kopezyk (“Kopezyk”) became employed
as an “assembler” at the Amphenol FOP location on February 10,1986. Kopczyk alleges that .
commencing somewhere in the time frame of 1995 and 1997 and continuing into August of
2001, she was subject to sexual harassment by certain individuals at Amphenol’s FOP location.
These individuals included Frank Holcombe (“Holcombe”), a FOP production manager; Tom
Vujovic (“Vujovic”), a FOP production supervisor; and John Keifer (“Keifer”), a
manufacturing process engineer.

On or about August 24, 2001, Kopezyk requested and began a voluntary leave of absence

2/



CONCLUSION

Therefore, based on the foregoing analysis, summary judgment will be granted to

Amphenol on Kopezyk’s sexual harassment claim.

Sal We fy —

Samuel Der-Yeghiayan
United States District Court Judge

Dated: (OCT 22,29°S3

12