2. Allison Kennedy

Defendants argue that the lack of detail regarding
inappropriate comments made by her co-workers show that Kennedy
lacks competent evidence to support her charge of sexual
harassment. They also argue that the touching by Maher does not
rise to the level of sexual harassment required by law.

The conduct that Kennedy was subjected to constituted sexual
harassment. Her direct supervisor inappropriately touched her,
questioned her about her personal sexual experiences and suggested
that she use sex to generate business. Perhaps most severe, Maher
reached under Kennedy’s skirt to grab her butt, Hostetler, 218
F.3d at 808 (“forcible physical contact of a rather intimate
nature” falls on actionable side of line). She was also subject to
inappropriate comments by co-workers. Kennedy specifically alleges
that Wiszowaty made sexual comments in front of her including
“slamming women in the butt” or grabbing their “boobs.” Smith v.
Sheahan, 189 F.3d 529 (7th Cir. 1999) (“Although they may be less
important in defining her work environment - . . , incidents
‘directed at others and not the plaintiffs . . . do have some
relevance jin demonstrating the existence of a hostile work
environment.’”) (citation omitted). A reasonable jury could
conclude that the conduct Kennedy suffered was severe enough to

alter the terms of her employment. Further, Kennedy’s repeated

= 20 -


4. Corinne Miller

Plaintiffs argue that Defendants unlawfully retaliated against
Corinne Miller because she participated in the EEOC investigation
surrounding Copello’s complaint and told Mandera she did not want
to monitor Copello. Plaintiffs argue that Miller meets the
standards for unlawful retaliation under the direct method of proof
because she was terminated some time after she informed Mandera she
did net want to monitor Copello.

Defendants argue that Miller never complained about
harassment, and any complaint was informal, They further argue
that Milier had signed a five-year contract, the contract was
complete, Miller’s performance was unsatisfactory, and Custom
reorganized in a way that eliminated her position,

Miller fails to present sufficient proof to survive summary
judgment. In order to prove retaliation under the direct method,
Miller must present “a convincing mosaic of circumstantial
evidence.” Sylvester, 453 F.3d at 903. The case can be made by
assembling a number of pieces of evidence that, taken on a whole,
provide strong support that all point in the same direction. fd.
Miller alleges she made an informal complaint about sexual
harassment but cannot remember the specifics. A vague complaint is
not sufficient to satisfy this standard. See Durkin, 341 F.3d at
615 (holding that vague complaints concerning subject matters other

than harassment did not suffice to meet retaliation standard). She

- 41 -


Custom also argues that Copello was a low performer and that

was the reason for her decrease in pay and subsequent termination.
Thus, there was no adverse action related to any protected
activity. However, there are disputed facts regarding the level of
Copello’s sales and whether sales were properly credited to her.
Copello was also told that her territory was a difficult one and
that no one had been able to make it adequately productive.
Further, Copello alleges that after she complained, she was subject
to increased criticism and threats by Mandera if she did not drop
the suit. Collins v. Village of Woodbridge, 96 F. Supp. 2d. 744
(N.D. Ill. 2000) (“a pattern of criticism by supervisors following
the making of complaint can establish the existence of causal
link,”).

Based on a number of disputed facts, Copello’s subsequent
decrease in pay and the alleged conduct by Kolzow and Mandera,
there is sufficient evidence to create a question of fact for the
jury. As such, summary judgment is denied as to Copello’s
retaliation claim.

2. Allison Kennedy

Kennedy argues that she engaged in protected activity when she
complained to Maher, Fisher and Copello (and in turn to Klonowski)
about Maher’s inappropriate behavior and complained to Mandera
about Murphy’s refusal to train her. Shortly following Kennedy's

rejection of her direct supervisor, who was also the Vice-President


came off the stage and performed lap dances on each of the four

female employees that were present. A female stripper sat on
Sudis’ lap with her breasts in front of Sudis’ face. After the lap
dance, Sudis left in the first available car. Sudis also alleges
she was exposed to sexually suggestive behavior because the Crazy
Horse strippers selling tickets at the golf outing dressed and
acted in a sexually provocalive manner. A fellow employee also
asked her whether she got the “fire hose” referring to sex with her
husband who wes a firefighter. Finally, Sudis heard an array of
sexually explicit comments made by various Custom employees
including Wiszowaty and Marcelino. She also alleges that she saw
a co-worker fondle another co~-worker’s breasts.

Sudis complained to Klonowski, Steve Laue, and Mandera about
a female co-worker’s dress code but was informed the outfit was
permitted by the code. Aside from complaining about a co-worker’s
dress, Sudis did not complain about the lap dance or the other
inappropriate comments. Sudis attended a seminar on sexual
harassment held within Custom and she also received an employment
packet detailing Custom’s policy on sexual harassment multiple
times.

II. ANALYSIS
A. Summary Judgment
Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

-14-


contacted her regularly to discuss her contacts. Although she did
not attend weekly sales meetings due to her children’s schedule,
she went to the office at alternative times so that Heinz could
review the content of such meetings. He frequently accompanied her
on sales calls and outings with clients. Although Fritkin did not
prepare expense reports, she testified that such reports were
unnecessary because any entertainment, such as tickets for her
clients, were provided by Custom. Additional entertainment, such
as meals with clients, were paid for by Heinz because he
accompanied her on those outings, Although Custom argues that
Fritkin did not sign a non-compete agreement and was free to work
for its competitors, the only time Fritkin was interested in
engaging in other business, she was discouraged from doing so and
told by Heinz to stay with Custom. Finally, there were

restrictions on where Fritkin could attempt to sell, she had to

obtain Heinz’s approval before entering different areas. A review

of the relevant factors demonstrates that there is sufficient
evidence to support a finding that Fritkin was an employee. Knight
v. United Farm Bureau Mutual Ins, Co,, 950 F.2d 377, 378 (7th Cir.
1991)
b. Hostile Work Environment
Defendants argue that because Fritkin did not complain, she
fails to satisfy the subjective element for an individual

harassment claim. Additionally, they argue that the complained of

~ 24 ~



does not remember any specifics and in fact testified that on
numerous occasions, she told human resources that she did not
witness any sexual harassment. She testified that she felt she
lest her job for three independent reasons: (1) she toid Custom
she was planning on retiring within a year; (2) her insurance costs
were high and (3) she told Mandera she did not want to monitor
Copello. Although she told Mandera that she did want to be a
Lattletale on Copello, she cannot remember the specifics of the
conversation and believed she mentioned her dislike of the
monitoring on one occasion. One such incident does not constitute
“a convincing mosaic of circumstantial evidence.” In addition,
Custom submits evidence that it did not replace Miller because it
reorganized its department. As such, summary judgment is granted
with regard to Miller’s retaliation claim.
F. Sexual Discrimination Claims

Title VII prohibits employers from treating employees
differently on the basis of their sex. 42 U.S.C. § 2000e+2(a) (1).
To establish a claim of sex discrimination, or disparate treatment,
a plaintiff can proceed either directly, by presenting direct
and/or circumstantial evidence of the employer's discriminatory
intent, or indirectly through the burden shifting method set for in
McDonnell] Douglas Corp., 411 U.S. 792. Plaintiff-Interveners
Copello and Kennedy elect to proceed under the direct method. ‘The

court must consider whether the purported difference in treatment

- 42 =


The allegations of sexual harassment in Copello’s Response to

Defendants’ Motion for Summary Judgment are detailed and extensive.
The court will not list every allegation here and notes that
Defendants’ dispute almost every allegation. Copello alleges that
she experienced constant harassment during her employment at
Custom. Copello alleges that she experienced unwanted sexual
touching by three different men at the offices of Custom or at a
business related events. Assistant Sales Manager Rich Rohde
(“Rohde”) rubbed his hands up and down her back while telling her
he loved her and discussing his penis size. Vice-President of
Sales Mike Fleming (“Fleming”) rubbed her thighs, arms and backs.
A workplace contractor, Marcelino grabbed Copello and touched her
numerous times. Copello was also subjected to unwelcome sexual
propositions from her co-worker, George Wiszowaty (“Wiszowaty”).
He told Copello he wanted her to “fuck him,” “suck him” and that he
was going to “fuck her brains out.” Vice-President of Truckload
Operations Tom Kolzow (“Kolzow”) continually asked Copello if she
had gotten “fucked” the night before and asked with whom she had
had sex. Wiszowaty asked if she had “fucked” a guy she dated and
in which sexual positions she had engaged.

In addition to the above, Copello was subjected to constant
sexually explicit comments by several managers and co-workers
including but not limited to, Tom Kol.zow, George Wiszowaty, Chief

Financial Officer John Oster (“Oster”), and Mike Fleming. The


legitimate expectations; (3) she suffered an adverse employment

action; (4) a causal connection exists between the adverse action
and the protected activity and (5) she was treated less favorably
than similarly situated employees who did not engage in statutorily
protected activity. Williams v, Ill, Dept. Of Corrections, No. 05
© 2151, 2006 WL 2495020, at *6 (N.D. Ill. Aug. 25, 2006); Hill v.
Am. Gen. Ben. Fin., 218 F.3d 639, 645 (7th Cir.2000). The burden
then shifts to the employer to articulate a non-discriminatory
reason for its actions. If the employer succeeds, the plaintiff
may still prevail by demonstrating that the employer's stated
reasons for the challenged action are merely pretextual and the
employer's actual reason was discriminatory, Rennie v, Dalton, 3
F.3d 1100, 1108-09 (7th Cir.1993),
1. Catherine Copello

Copello attempts to prove the retaliatory causation through
the direct method, using direct and circumstantial evidence to show
she engaged in protected activity and suffered resulting adverse
employment action. See Sylvester v. SOS Children’s Villages
Illinois, Inc., 453 F.3d 900, 902 (7th Cir. 2006) (“if [the
plaintiff] can prove by means of circumstantial evidence that he
engaged in protected activity (filing a charge of discrimination)
and as a result suffered the adverse employment action of which he

complains, that is fine” under the direct method.).

- 35 +


requests to Maher to stop the behavior show that she deemed the
conduct to be harassment.
a. Mitigation of Damages

Custom argues that Kennedy’s damages should be limited because
she failed to mitigate her damages. In order to show that Kennedy
did not mitigate her damages, Defendants must prove that (1) she
failed to exercise reasonable diligence to mitigate and (2) there
is a reasonable likelihood that she might have found comparable
work by exercising reasonable diligence. Meyer v. United Airlines,
950 F. Supp. 874, 876 (N.D. Ill. 1997). Contrary to Defendants’
assertions, Kennedy testified that she took steps to find a
comparable job including reviewing the classified ads, looking on-
line for a position and going on interviews. Thus, an issue of
fact exists with respect to Kennedy’s mitigation of damages.

3. Kimberly Fritkin
a. Independent Contractor

Defendants allege that Fritkin was an independent contractor
and thus, not protected under Title VII. Courts analyze five
factors to determine independent contractor status: {1) an
employer’s control and supervision of a worker; (2) the kind of
occupation and nature of skill, including if skills are obtained in
workplaces; (3) the responsibility for cost of operation; (4) the
method and form of payment and benefits; and (5) the length of

employment and/or expectations. Knight v. United Farm Bureau Mut

-21-


admitted that she did not believe the woman who chose not to go to
the Crazy Horse suffered any adverse consequences. Further, Sudis
did not stop the lap dance and never complained about it, despite
knowing the proper procedure and having complained about other
matters.

Sudis’ other allegations do not involve any direct sexual
propositions or sexually explicit language directed toward her.
Further, these events took place over the seven years that Sudis
worked at Custom. The conduct Sudis alleges is more consistent
with isolated events than a continuing practice and did not rise to
the level of a sexual harassment claim. Summary judgment is
granted with respect to Sudis’ sexual harassment claim.

D. Ellerth Defense

In Ellerth and Faragher, the Supreme Court established the
standards that govern an employer's liability for sexually
harassing behavior of a supervisor toward a subordinate employee.
Burlington Industries, Ine. v. Ellerth, 524 U.S. 742 (1998);
Faragher v. City of Boca Raton, 324 U.S. 775 (1998); Molnar v.
Booth, 229 F.3d 593, 599 (7th Cir. 2000). The Court created a
distinction between “cases in which the supervisor takes a tangible
employment action against the subordinate and those in which he
does not.” Id. at 600. The Court explained that an employer was
vicariously liable “to a victimized employee for an actionable

hostile environment created by a supervisor with immediate (or

-~ 27 =


supervision, an employee/employer status is more likely.” Worth v,
Tyler, 276 F.3d 249, 263 (7th Cir. 2001) (citing Knight, 950 F.2d at
380). The fact that Fritkin received a Form 1099 and not a Form W-
2 also supports a finding that Fritkin was an independent
contractor, These factors alone, however, do not end the inquiry.
See Worth, 276 F.3d at 264.

The remaining factors support that Fritkin was an employee.
Although Defendants argue that Fritkin did not receive benefits,
she was offered health insurance but declined coverage because she
received insurance through her husband. Her employment was not for
a set amount of time but was open-ended. This also indicates an
employer/employee relationship. Although Fritkin was responsible
for paying her own taxes and was issued a Form 1099, the available
evidence supports that Fritkin regarding her weekly pay as a
Salary. She requested to be responsible for her own taxes because
at the time she became employed at Custom, she was a single mother
of two children and was desperate for cash. Thus, she explained to
Custom that she needed to earn a take home salary of $1,000.
Despite the contract language, Fritkin did not know what a “draw”
was and understood that she was earning a salary.

For a portion of her employment with Custom, Fritkin had her
own desk at Custom. She attended training and was required to fill
out call reports for her supervisor detailing what she did each

week. Heinz, her initial interviewer and direct supervisor,

- 23 -


Copello argues that she engaged in protected context when she
made internal complaints about the harassment. She lists several

adverse actions that occurred as a result of her complaints

including her decrease in salary, which she argues was not

voluntary, her difficulty obtaining service for her clients through
Kolzow after she complained about him, and Mandera's repeated
comments that lives would be ruined if she proceeded with the HEOC
charge, things would get ugly and she would not be able to work in
the industry. The alleged threats by the company’s president are
direct evidence of a retaliatory motive.

Custom argues that Copello did not engage in protected
contacts because many of her complaints were not through the formal
complaint process, See Durkin v, City of Chicago, 241 F.3d 606
(7th Cir. 2003). Although the Seventh Circuit held in Durkin that
an employee's informal complaints were not sufficient to constitute
protected activity, it focused on the fact that the complaints were
“vague and concerned subjects other than harassment” and thus were
insufficient to notify her employer of a Title VIi violation. See
Jones-Walsh v. Town of Cicero, No. 04 C 6029, 2005 WL 2293671 (N.D.
lll. Sept. 14, 2005) (“a jury reasonably could find that [informal]
complaints constitute protected activity.”). Unlike the complaints
in Durkin, Copello’s complaints were specific and related to sexual

harassment.



what remains of her allegations are a series of isolated events

involving inappropriate language that do not rise to the level of
sexual harassment required by Title VII. Finally, Defendants argue
that Copello cannot satisfy the subjective test for any harassment
claim because, they claim, she did net complain about the behavior
and willing participated in parts of it.

The Supreme Court has held that “the objective severity of the
harassment should be judged from the perspective of a reasonable
person in plaintiff’s position.” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81 (1998). On one side of the spectrum
lies sexual assaults, other physical contact, uninvited sexual
solicitation, intimidating words or acts, obscene language or
gestures and pornographic pictures. Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986); Hostetler, 218 F.3d at 807. On the
other side lies occasional vulgar banter, tinged with sexual
innuendo, of coarse or boorish workers. Id. The conduct that
Copello alleges should be viewed cumulatively and not a series of
isolated incidents, including incidents occurring prior to the 300-
day window. See Hostelter, 218 F.3d at 808 (“The continuing
violations doctrine allows a court to consider as timely ali
discriminatory conduct relevant to a claim, so long as there is
sufficient evidence of a ‘pattern or policy of discrimination.’”);
see also Silverman v. Johnson, NO, 01 C 359, 2004 WL 2044182, *12,

fn.2.

-~ 18 -


he again grabbed her butt when she walked by him in the Custom
hallway. Finally, when driving on a trip to a sales call, Maher
grabbed her leg, motioned his hand on her breast and down to her
inner leg. He repeatedly asked her if she engaged in oral sex and
also asked her if “she took it in the butt.”

Kennedy also alleges that George Wiszowaty made sexual

comments at sales meetings including “slamming women in the butt,”

or grabbing their “boobs.” At sales meetings, the representatives
would discuss sleeping with strippers from the Crazy Horse and
their activities at the strip club. Kennedy heard truckload
employees refer to women as “bitches” and “cunts.”

After refusing Maher’s advances, on October 20, 1998, Custom
fired Kennedy with the stated reason that she failed to generate
revenue. Following her termination, Kennedy attempted to contact
Mandera to discuss her situation with Maher and her termination.
Mandera allegedly told her that Maher could run his department as
he saw fit. Prior to her termination, Kennedy complained about
Maher’s actions to Copello and Mike Fisher, the Customer Service
Manager. Copello contacted Klonowski and informed her of the
harassment Kennedy was experiencing one day prior to Kennedy's
termination.

Cc. Kimberly Fritkin
Kimberly Fritkin was hired on October 12, 2000 as a sales

representative and paid $1,000 weekly. The parties dispute whether



the next day and Klonowski failed to investigate any of the claims.
Failing to investigate allegations of harassment does not
constitute reasonable action in remedying the harassment after it
occurred or in preventing future misconduct. Cerros, 398 F.3d at
952. Thus, Custom failed to satisfy the first prong of the Ellerth
defense with regard to Kennedy as well.

5. Plaintiffs did not Fail
to Utilize Corrective Opportunities

Copello followed Custom’s sexual harassment policy by
complaining first to a Vice-President and later to human resources.
Kennedy complained to a manager. Fritkin was not aware of Custom’s
policy because she never received the employee handbook. As such,
Custom fails to establish there is no issue of fact as to the
second prong of the Ellerth defense.

6. Custom was not Negligent with
Respect to Co-Worker Harassment

Even if no tangible action had been taken by a harassing
supervisor, Custom also fails to establish that it was not
negligent as to any co-worker harassment with regard to Copello.
According to Copello’s allegations, she repeatedly complained ta
John Murphy regarding the inappropriate language and touching and
the sexual propositions. Before Copello went to human resources,

these complaints were never addressed.


Copello’s salary. Thus, there is an issue of fact as to whether a
harassing supervisor was involved in the decision to lower
Copello’s salary.

Defendants also argue that the decision to terminate Copello
was separate and apart from the alleged harassment. Defendants
claim that Copello was terminated because she was one of the three
lowest performers who were fired when Custom took on a competitor’s
business. By contrast, Copello argues that her accounts were not
properly credited it to her, that she was assigned the lowest
earning territory, Elgin, and she was informed that no one had ever
been able to make Elgin profitable. Further, Copello submits
revenue numbers showing that she was improving and that she was not

one of the three lowest individuals. There is a genuine issue of

material fact as to whether Copello was terminated for her

performance or due to her complaints regarding sexual harassment.
Thus, summary judgment is denied on the Ellerth defense with regard
to Copello.
2. Allison Kennedy

Kennedy had only been employed for seven weeks when she was
terminated. During those seven weeks, Maher was her single and
direct supervisor and undoubtedly had input into the decision to
terminate her. Maher trained her and accompanied her on sales
calls. For her entire tenure at Custom, Kennedy alleges that Maher

constantly harassed her. Before she was fired, she was told that

- 30 -



Murphy about Wiszowaty’s continual harassing behavior and OsLer’s

sexually explicit comments. She complained to Mandera and Fleming
in 1998 about Kolzow’s and Wiszowaty’s behavior. Finally, she
complained to managers Janene Sudis and Cindy Alan about Tom Fink’s
inappropriate comments. Copello also complained to Human Resources
Manager Terry Klonowski about Vice-President of Sales Mike Maher
harassing Allison Kennedy in 1998.

On January 8, 1999, Copello complained orally to Human
Resources Manager Terry Klonowski about inappropriate and sexual
comments she had heard in the office and at company events. on
January 14, 1999, Copello submitted a memorandum stating that she
was the victim of 17 categories of misconduct. The misconduct
included verbal comments of a sexual nature including being
questioned about her own personal sexual experiences and being
subjected to the discussion of others’ sexual experiences,
profanity, sexual and racist jokes, inappropriate sexual materials
left on her desk at work, pressure to entertain at the Crazy Horse,
the presence of Crazy Horse strippers at Custom sponsored events,
and unwanted physical contact. She also alleged that she was
excluded from company events on basis of her sex, received unequal
pay, and other inferior perks.

Following her written complaint, Klonowski and Boyle conducted
an investigation into Copello’s allegations. The investigation

included interviewing potential witnesses including Mandera. Most


comments including frequent use of the word “fuck” and often
described graphic sexual episodes in which the men had engaged.
Fleming and John Oster told Copello to have sex with customers
because it was good for business. Fleming also told Copello how
often he went home and “fucked [his] wife in the bathtub.” Other
sales representatives described their sexual episodes with their
girlfriends, spouses, and co-workers. At sales meetings, Copello
frequently heard obscene language used including: “dick,”
“dickhead,” “cock,” “pussy,” “fuck,” and “cunt.” Wiszowaty also
unzipped his pants and exposed himself at a bar after a Custom
Event in front of Copello.

Copello also alleges that she was pressured to entertain at
the Crazy Horse and had to listen to repeated conversations about
other sales representatives’ experiences at the strip club. In
addition, strippers from the Crazy Horse were hired to work an
annual Custom golf outing. During the golf outing, the strippers
were dressed in short shorts and bikini tops and acted in a
sexually suggestive manner with both Custom employees and
customers.

Copello contends that, beginning in 1995, she continually
complained to her Division Vice President John Murphy (“Murphy”).
She complained to Murphy about Kolzow’s conduct, the presence of
the strippers at the golf outing, the comments made by Fleming, and

pornographic materials left on her desk. She also complained to


The type of conduct Copelle alleges lies on the actionable
side of the line dividing abusive conduct from offensive behavior.
First, Copello alleges unwanted physical contact, in part done by
her supervisors, Fleming and Rhode. See Doe v. Oberweis Dairy,
456 F.3d 704 (7th Cir. 2006) (“The sexual act need not be committed
in the workplace, however, to have consequences there.”). She also
alleges numerous uninvited sexual solicitations directed at her
personally. See Quantock v. Shared Marketing Servs., 312 ¥.3d 899
904 (7th Cir. 2002) (reversing grant of summary judgment where
plaintiff alleged outright sexual proposition by company
president). Copello alleges the constant use of inappropriate
language, discussion of sexual exploits, both in her presence and
directed at her and pressure to attend company events where
inappropriate conduct occurred. Taken as a whole, the alleged
conduct is sufficient to permit a reasonable jury to find that
allegations altered Copello’s conditions of employment and
constituted sexual harassment. Further, when viewed in Copelio’s
favor, the record supports the inference that she viewed her work
environment as hostile as a result of the harassment. Before her
written complaints, she complained orally on several occasions to
her supervisor that the conduct was offensive and that she was not
being treated equally. Those actions demonstrate concern over the

conduct and an unwillingness to tolerate further harassment.

- 19+


Copelle alleges that following her oral and written
complaints, Mandera made several comments telling her that if she
did not drop the EEOC lawsuit things were going to get ugly, lives
would be ruined and that she would never be able to work in the
trucking industry again. In addition, Kolzow began to treat her
differently, including not giving her clients sufficient attention
and delaying giving her quotes.

B. Allison Kennedy

Kennedy worked for Custom from August 17, 1998 until October
20, 1998, She was hired for her expertise in air freight business.
Kennedy alleges that during her seven weeks at Custom she was
subjected to unwanted touching and numerous inappropriate sexual
comments. She alleges that when she began the Vice President of
Sales John Murphy refused to train her and told her it was because
she was female. She informed Mandera about Murphy’s conduct and
was told she would receive training without going through Murphy.

She also alleges that her supervisor, Mike Maher, who replaced
Murphy as Vice-President of Sales, repeatedly questioned her about
her sex life, suggested that she exchange sexual favors for
business with potential customers, frequently told her to let
customers touch her in a sexual way to generate business, and
constantly questioned her about her sexual experiences with her
boyfriend. While Kennedy was climbing the stairs, Maher put his

hand under her skirt and grabbed her butt, On a separate occasion,


actions did not alter her work environment. Contrary to

Defendants’ assertions, the alleged conduct is sufficient to
constitute sexual harassment. Fritkin was subject to constant
harassment by her direct supervisor, who was the Vice-President of
Sales. He explicitly propositioned her for sex, including telling
her he wanted to “fuck” her. He physically touched her, including
on her butt and attempted to put his foot up her skirt. His told
her that “[i]f you fuck with one person, you’re just going to fuck
yourself,” A reasonable jury could conclude that the frequency and
severity of these actions unreasonably interfered with Fritkin’s
work environment. Although Fritkin did not complain to human
resources, she was not aware of the complaint procedure and was in
fear of losing her job. Also, she did not receive the employee
handbook. Further, there is an issue of fact with regard to
whether Fritkin attempted to complain to Mandera. Thus, there is
sufficient evidence to support a Finding that Fritkin perceived her
work environment as hostile.
4. Linda Dyson

Defendants argue that none of the comments Dyson alleges were
directed at her. While Defendants admit Marcelino may have used
foul language and touched her, Defendants argue this conduct does
not support a sexual harassment claim. Although Dyson claims to
have complained, she cannot recall the names of the individuals to

whom she complained.


fil

FILED

OCT 2 8 2006
1£3,2006

JUDGE Karey. LENENW
UNITED STATES EQUAL EMPLOYMENT US. DISTRICT COURT JUDGE *

OPPORTUNITY COMMISSION,

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

Plaintiff,

and Case No. (2c 3768)
03 C 2293
CATHERINE COPELLO and ALLISON

KENNEDY, Hon. Harry D. Leinenweber

Plaintiffs-
Intervenors,

v.

CUSTOM COMPANIES, INC., CUSTOM
EXECUTIVE GROUP, INC. and CDN
LOGISTICS,

Defendants.

MEMORANDUM OPINION AND ORDER

The Equal Employment Opportunity Commission (hereinafter,
“BEOC’) and Plaintiff-Interveners Catherine Copello and Allison
Kennedy (hereinafter, “Interveners”) (collectively, the
“Plaintiffs”) filed suit against Defendants Custom Companies Inc.
{hereinafter, “Custom”’) and Custom Executive Group (hereinafter,
“CEG") (collectively, the “Defendants”) alleging sexual harassment
and retaliation in violation of Title VII of the Civil Rights Act,
as amended, 42 U.S.C. § 2000 et seg, Together, the EEOC and the
Interveners allege that Defendants subjected a class of women to a

hostile environment of sexual harassment. The EEOC alleges that



meeting, he attempted to pull her into a hotel. He invited her to
the Crazy Horse and reprimanded her for failing to take clients
there.

When Fritkin was in the Custom office building, Steve Laue
(“Laue”) put $100 on the table. Heinz told her the $100 was a bet
on who could sleep with her first. Fritkin told Heinz to “fuck
off.” Heinz responded that “If you fuck with one person, you're
just going to fuck yourself.” He also told Fritkin that if she
said anything about him, he would make her life a living hell.
After that incident with Steve Laue, Fritkin’s compensation was
lowered from $1,000 a week to $750. Custom alleges that the
decrease in salary was a result of Fritkin not generating
sufficient revenue. When Heinz stopped making the comments, he
ceased in helping Fritkin with her sales and said “why should I
help you if you don’t do anything for me?”

Fritkin never received a copy of Custom’s Employee Handbook or
a copy of its anti-harassment policy. She had no information
concerning the complaint procedure. She asked Heinz on several
occasions to stop the behavior and that told him that he was making
her job impossible. Eventually, she asked to meet with Mandera
without Heinz. She waited to meet with Mandera for an hour and
half but he left his office informing her that he did not have time

to meet. Following that incident, Fritkin resigned from Custom.

-12-


Fritkin was an employee or an independent contractor as well as
whether the weekly $1,000 was a draw against commission or a
salary. At the end of 2000, Fritkin was issued a Form 1099.
During her time at Custom, Fritkin reported solely to Bob Heinz
(“Heinz”), the Vice-President cf Sales. She contacted him for
leads and reported to him on her sales calls and any issues with
clients. On a few occasions, she accompanied Heinz on lunches to
entertain clients. She attended sales calls with Heinz
approximately once a week.

Fritkin alleges that Heinz, her direct supervisor, constantly
subjected to her to inappropriate behavior. Heinz would arrange Lo
meet her to discuss business and then begin talking to her about
beginning a personal relationship. When Fritkin called him to
discuss business, he would change the subject to discuss his
personal problems and how he wanted to sleep with her. He told her
he missed her and was in love with her. He continually touched
her, including grabbing her arm or hand, trying to kiss her, and
touching her butt. Heinz also tried to put his foot up her skirt
at a meeting with a client. Fritkin kicked his leg in response and
later the client contacted her saying that “Bob was scum.” He
repeatedly told her he wanted to have sex with her, He also drove
by her house on numerous occasions and called her throughout the
day and night attempting to meet in order to have sex. He

explicitly told her that he wanted to “fuck” her, After a sales

-11-


also failed to submit evidence showing that her salary and

commission were lower than her male counterparts. Similarly,

although Copello was not given a territory close to her home, only

one sales representative resided in his territory. Copello points
Lo one account that she believed was taken from her on the basis of
her sex. Defendants, however, submitted unrefuted documentary
evidence that the client requested Mandera,

In response to Copello’s allegations that she was
discriminated against because of the presence of strippers at the
golf event, Defendants point out that Copello was invited to attend
the outing (as were her male co-workers) but Mandera explicitly
told that her attendance was not required. Further, she had the
same access to the Crazy Horse as her male co-workers for client
entertainment purposes. Importantly, Copello also had the option to
entertain clients at the other venues, such as sporting events
theaters, and restaurants. In fact, such entertainment was
encouraged, While some of Defendants’ comments may have been
harassing and offensive, Copello fails to submit the requisite
amount evidence that Custom discriminated against her in pay arid
job benefits in order to avoid summary judgment.

2. Allison Kennedy

Kennedy alleges that she was discriminated on the basis of her

sex because John Murphy refused to train her. When Murphy refused

to train her, Kennedy informed Mandera and was told she would be



(Defendant exercised reasonable care by including a detailed policy
prohibiting sexual harassment in its employee handbook.). Fritkin,
however, never received the employee handbook. Thus, Defendants
fail to satisfy the first prong of the Ellerth defense with regard
to Fritkin.

Although implementation of a sexual harassment policy may be
sufficient to prevent sexual harassment that does not establish
that Custom acted reasonably in remedying the harassment after it
occurred or in preventing future misconduct. Cerros v. Steel
Technologies, Inc,, 398 F.3d 944, 952(7th Cir, 2005), Before
taking her complaints to the human resources department, Copello
alleges that she complained several times to a Vice-President, John
Murphy, As the Seventh Circuit held in Cerros, the employer’s
knowledge of the misconduct is what is critical, not how the
employer came to that knowledge. Custom conducted an investigation
into Copello’s complaint only after she brought them in writing to
the human resources manager. The investigation ended in written
warnings and one disciplinary warning, given for an employee
exposing his penis in front of his co-workers. Given the severity
and extent of Copello’s complaints, a reasonable jury could
conclude that Custom did not act reasonably in remedying Lhe
harassment.

With regard to Kennedy, Copello complained to Klonowski about

the Maher’s alleged harassment of Kennedy. Kennedy was terminated

— 32 -


she was doing a good job. After she refused Maher’s advances, she
was terminated. When she attempted to contact Mandera to discuss
her termination, she was told that Maher could run his department
as he saw fit. A jury could infer that the decision to terminate
Kennedy was motivated by her refusal to engage in relations with
Maher and that Maher made the decision to terminate her. Thus,
summary judgment is denied on this issue.
3. Kimberly Fritkin

Fritkin’s pay was decreased by 25% prior to her resignation.
Fritkin only had contact with Heinz, her alleged harasser. He
interviewed her, participated in the decision to hire her, oversaw
her weekly activities, and accompanied on her on sales calls.
Fritkin alleges that her pay was decreased only after she told her
alleged harasser “to fuck off” and refused to give in to his
advances. Based on the record, Heinz would have participated in
the decision to decrease her pay. Again, there is an issue of fact
with regard to whether Heinz was involved in the decision to lower

Fritkin’s pay and whether her pay was lowered for reasons unrelated

to the alleged harassment. For these reasons, summary judgment is

denied on the Ellerth Defense with regard to Fritkin.
4. Custom Undertook Reasonable and Corrective Measures
Defendants also argue that they took reasonable and corrective
measures by including a sexual harassment policy in its employee

handbook. See Shaw v. AutoZone, Inc., 180 F.3d 806 (7th Cir. 1999)

- 31 -



of the witnesses denied her allegations. As a result of the

investigation, written warnings were issued to several employees as
the result of inappropriate language, A disciplinary warning was
also issued to Wiszowaty for exposing himself at a bar.

In June 1999, Copello wrote a memorandum to Mandera regarding
the upcoming Custom golf outing. She stated that the presence of
Crazy Horse strippers at the outing created a sexually-hostile
environment. On June 23, 1999, Mandera responded that attendance
at the Event was not required and that no one at the Event would be
unclothed. Also in June, Copello wrote to Mike Maher stating that
she wanted a separate golf outing, the same terms and conditions
regarding expense accounts and benefits that male representatives
had, and she wanted him to accompany her on weekly sales calls. On
October 14, 1999, Copello wrote to Klonowski stating that at a
sales meeting, Mandera repeatedly yelled “fuck” and told her that
“Fuck you, Catherine Copello, I don’t give a fucking damn about
your lawsuit. . . .” Boyle interviewed Copello regarding her
recent complaint on October 25, 1999. He also interviewed each
attendee of the sales meeting. Each individual stated that Mandera
had used profanity, had apologized, but had not mentioned the
lawsuit. Mandera admitted using profanity but denied making the
comment regarding the lawsuit. Boyle met with Copello again in

November to discuss her allegations relating to the golf outing.


Ins. Co., 950 F.2d 377, 378 (7th Cir, 1991), Of the factors to be
considered, the employer’s right to control is the most important
when determining whether an individual is an employee or an
independent contractor. Id.

Defendants allege that Custom had no control over Fritkin
because she did not have to “punch in,” had no set hours, worked
out of her home and did not complete expense reports. In addition,
Defendants argue that she did not have office keys or attend weekly
sales meetings. Finally, Defendants argue that the form of payment
evidence Fritkin was an independent contractor. She received a
Form 1099 rather than a Form W-2, paid her own taxes, and did not
receive vacation or sick days.

Plaintiffs argue that Fritkin was an employee of Custom
because she had to regularly report to Heinz and was under his
supervision, Custom limited the companies Fritkin could see and
she was trained on the job. Further, her phone and other bills
were paid for and her driving expense was factored into her salary.
She was provided with tickets for entertaining and paid lunches for
clients. She was also provided with Custom business cards to
distribute. Her commitment to Custom was also open-ended.

Fritkin came to Custom with sales experience in the
transportation industry. “An individual’s unigue work skills may
indicate independent contractor status, (Citation omitted).

However, if the individual requires substantial training and


acted in retaliation in response to her complaints and refusal to
engage in certain conduct with him is a question for the jury.
Dey, 28 F.3d at 1459 (“Summary judgment is generally improper where
the plaintiff can show that an employee with discriminatory animus
provided factual information or other input that may have affected
the adverse employment action.”) (citation omitted). Summary
judgment is denied as to Kennedy’s retaliation claim.
3. Kimberly Fritkin

Plaintiffs allege that Defendants filed a lawsuit against
Fritkin in retaliation for her cooperation and participation in
this lawsuit. Defendants argue that Fritkin'’s participation in the
lawsuit does not constitute protected activity because she did not
file a charge with the EEOC. Defendants also argue that a
meritorious lawsuit cannot form the basis for a retaliation claim.

Fritkin’s participation in the lawsuit against Custom is

protected activity under Title VII. See Burlington Northern &

Santa Fe Railway Co., 126 8.Ct. at 2414 (“Title VII depends for its
enforcement upon the cooperation of employees who are willing to
file complaints and act as witnesses.”) (emphasis added). Under the
Supreme Court's recent decision in Burlington Northern, Defendants
distinction that she did not file an EEOC charge but is
participating in the lawsuit is arbitrary and unpersuasive.
Fritkin also meets the second requirement of the McDonnell

Douglas test because she has suffered an adverse action by being

- 39 -



sued and being forced to incur the expenses of hiring attorneys.

Finally, whether Defendants’ lawsuit was motivated by retaliation
is a question of fact for the jury. The EEOC notes that Custom
ignored Fritkin’s purported debt until after the EEOC filed suit.
Custom only filed the lawsuit after it failed to have Fritkin
removed from the class. In addition, Custom has never filed a
similar suit against any of its previous sales representatives.
See Ajayi v, Aramark Business Serv. No. 00 C 4403, 2004 WL 763840,
at *4 (N.D. Ill, March 3, 2004).

According to Fritkin, she understood her $1,000 weekly pay to
be a salary and not a draw on commission. In fact, Fritkin did not
understand what constituted a draw on commission. When she
resigned from Custom, she attempted to meet with Mandera but was
left waiting for an hour and half only to be told that he did not
have time to meet with her. Following her resignation, Fritkin
returned her CusLom provided cell phone. As noted above, she did
not receive any notification of that she owed Custom money until
after she joined this lawsuit and Custom attempted to have her
withdrawn from the case. The fact that Custom never notified
Fritkin that she owed any money until after she joined an
employment discrimination lawsuit is sufficient to allow a
reasonable jury to conclude that the Lrue motivation for Custom’s

suit was retaliation.

- 40 ~


successively higher) authority over the employee” where “the
supervisor's harassment culminates in a tangible employment action,
such as discharge, demotion, or undesirable reassignment.”
Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765. In cases
where the supervisor took no tangible employment action, however,
the Supreme Court permitted the defending employer to raise an
affirmative defense to liability or damages. Faragher, 524 U.S. at
807; Ellerth, 524 U.S. at 765. In order to assert the affirmative
defense Defendants must prove two elements: they exercised
reasonable care to prevent and correct promptly any harassing
behavior, and the victimized employee failed to take advantage of
preventive or corrective cpportunities provided by the employer.
Id.

If the harassment was not done by a supervisor, Custom is only
liable for an employee’s conduct if it was negligent either in
discovering or remedying the harassment. Hall v, Bodine Electric
Co., 276 F.3d 345, 356 (7th Cir. 2002) (citations omitted); Cerros
v, Steele Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005).
An employer satisfies its legal duty in coworker harassment cases
“if it takes reasonable steps to discover and rectify acts... of
harassment of its employees,” Id., citing Parkins v, Civil
Constructors of Ill. Inc., 163 F.3d 1027, 1032 (7th Cir. 1998).

Defendants argue that all, Plaintiffs’ claims are barred under

Ellerth. Defendants argue that no plaintiff can prove any tangible

- 28 -


occurred, Whether all employees received the handbook and the
actual complaint process with Custom are in dispute.
A. Catherine Copallo

Copello was employed at Custom from October 10, 1994 until she
was terminated on November 16, 1999, She was given a copy of
Custom'’s Employee Handbook and acknowledged on subsequent occasions
that she received it. Copello was hired to bring her experience
and clients in the air freight business to Custom and to expand on
those relationships by selling additional services. Until 1996,
Copello was not assigned a specific territory but was allowed to
sell in different areas without restriction. Copello’s
compensation consisted of a base salary, commission, and a car
allowance. In 1996, Copello was assigned the Elgin territory and
allowed to continue to service her existing airfreight accounts.

Custom claims that Copello was consistently one of the lowest
performing sales representatives. In 1998, Copello met with John
Murphy, the Vice President of Sales, to discuss possible changes to
her compensation structure allegedly due to her performance. She
was told that she might be terminated. As a result of the meeting,
Copello’s compensation was reduced by $5,000 and she was placed on
a commission plan. Whether this new arrangement was agreed to or
voluntary is disputed. Her revenue numbers are also in dispute
because she alleges that accounts were either taken away from her

or not properly credited to her, Eventually, she was terminated.


trained without Murphy’s involvement. Kennedy had experience in
sales when she was hired at Custom and received training from
individuals other than Murphy. Kennedy does not allege sufficient
evidence that her conditions of employment were materially
adversely affected by Murphy’s refusal to train her. Defendants’
summary ‘judgment motion is granted with respect to Kennedy's sex
discrimination claim,
III. CONCLUSION

For the reasons stated herein, the Defendants’ Motion for
Summary Judgment is granted in part and denied in part,

Defendants’ Motion for Summary Judgment is granted with

respect to:

1. The sexual harassment claims of Linda Dyson and Janene
Sudis;

2. The retaliation claim of Corinne Miller; and

3. The sex discrimination claims of Allison Kennedy and

Catherine Copelilo.
The remainder of the Motion for Summary Judgment is denied.

If IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Dated: Mehl dbits BAN,

- 45 -



together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fep. R. Civ. P. 56(c). The court
must view al] the evidence and any reasonable inferences therefrom
in the light most favorable to the nonmoving party. See Miller v.
Am, Family Mut. Ins. Co., 203 F.3d 997, 1003 (7th Cir. 2000).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp.
Catrett, 477 U.S. 317, 323 (1986), In assessing the movant's
claim, the Court must view all the evidence and any reasonable
inferences that may be drawn from that evidence in the light most
favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7th Cir.2000). Once the moving party has met
its burden, the nonmoving party “may not rest upon the mere
allegations” contained in its pleading, but rather “must set forth
specific facts showing that there is a genuine issue for trial.”
Fed. R. Civ. P. 56(e); Becker v, Tenenbaum-Hill Assoc., Inc., 914
F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989).

B. Administrative Determination to Bring Case as a Class

Defendants argue that the EEOC’s investigation was
insufficient to support its complaint. Contrary to Defendants’
assertions, there is no judicial review of the adequacy and scope

of the EBOC’s investigation. The Seventh Circuit recently ruled in

- 15 -


threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’” Hostetler v. Quality Dining, Inc. 218 F.3d 798 (7th
Cir. 2000) (citations omitted). The impact of the harassment upon
the plaintiff’s work environment is assessed both objectively and
subjectively. Id, The work environment cannot be described as
“hostile” for purposes of Title VII unless a reasonable person
would find it offensive and the plaintiff actually perceived it as
such. Id., (citation omitted).
1, Catherine Copello

Defendants argue that Copello’s allegations consist of
falsehoods and exaggerations. They argue that while she complains
about the presence of strippers at various Custom events, she
admits that no one actually took their clothes off. Similarly,
although she complains about the presence of pornography at a
seminar, she never actually saw the pornography. Additionally,
Defendants argue that many of Copello’s complaints are time barred
because the conduct occurred more than 300 days prior to the filing
of her EEOC charge and constituted discrete acts, not part of a
pattern of activity. But see National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 117 (2002) (holding that the entire time

period of harassing conduct may be considered). Defendants also

argue that many of her claims are not actionable because they were

directed at her co-workers, not her personally. They allege that

-17 -



and complying with company policies. In order to prospect new
business and maintain current accounts, the representatives were
expected to entertain customers, Such entertainment included
meals, concerts, theaters, sporting events, and for some
representatives, taking clients to a “gentleman’s club” today known
as VIP but formerly known as the Crazy Horse. Mandera owned the
Crazy Horse and made it available to his sales representatives for
client entertainment purposes.

Custom employs an individual to be responsible for human
resources functions. From 1990 to 2000, Thomas Boyle (“Boyle”
served as either Assistant Vice President or Vice President of
Administration and had primary responsibility for human resources

issues. In 1998, Terry Klonowski (“Klonowski”) became Human

Resources Manager and reported to Boyle until 2000 when he left his

position, In late 2002, Klonowski was promoted to Vice President
of Human Resources.

Custom distributes an Employee Handbook, which contained its
anti~harassment and discrimination policies. The policies
included: an explanation of prohibited conduct; assurance that
employees who complained against discrimination would not be
retaliated against; a complaint process including an investigation
process; assurance regarding the confidentiality of complaints; and

assurance that appropriate action would be taken when harassment



of Sales, and one day following report of such conduct to the human

resources manager, Kennedy was terminated. See Dey v. Colt Const.
& Development Co., 28 F.3d 1446 at 1457.

Defendants argue that Kennedy’s complaints did not constitute
protected activity. Kennedy, however, did complain through the
formal channels established by Custom by complaining to Maher, a
Vice-President, and asking him to stop his inappropriate behavior.
She also followed the formal channels when she informed Mandera
that Murphy had refused to train her. Finally, she informed Mike
Fisher, a manager. See Jones-Walsh v. Town of Cicero, 2005 WL
2293671, at *5 (“a jury reasonably could find that [informal]
complaints constitute protected activity.”). Defendants also claim
that Kennedy failed to generate revenue during her seven-week
tenure at Custom and that justified her termination. However,
Maher’s comment that Kennedy was doing a good job one week prior to
her termination raises an issue of fact. Kennedy was fired almost
immediately after rejecting Maher’s advances. The suspicious
timing of these events supports Kennedy’s claim for retaliation.
Dey, 28 F.3d at 1458 (“plaintiff may establish a link through
evidence that the discharge took place on the heels of protected
activity.”) (citations omitted). Additionally, Kennedy attempted to
discuss her termination with Mandera, who informed Kennedy that it
was Maher’s department and he could run it the way he wanted.

Maher participated in the decision to terminate Kennedy, whether he

- 38 -


The line between an unpleasant working environment consisting
of vulgar and offensive conduct and a sexually harassing
environment consisting of conduct that is deeply offensive is not
a bright one. Baskerville v. Culligan Int’l Co., 50 F.3d 428, 431
(7th Cir. 1995). Certainly, Marcelino’s conduct was vulgar and
offensive. His constant use of profanity, however, does not give
rise to a sexual harassment claim. The “rubbing” against Dyson
when he walked by her does not constitute the type of forcible
physical contact of an intimate nature that has been found
sufficient to satisfy sexual harassment standards. His most
offensive action, the proposition that he wanted to “fuck” her was
indeed cffensive but was an isolated incident. See Whittaker, 424
F.3d at 645-46 (holding that vulgar, coarse and boorish behavior
spread over several months does not amount to actionable sexual
harassment), citing Bakersville, 50 F.3d at 430. Thus, Defendants’
Motion for Summary Judgment with regard to Dyson's sexual
harassment claim is granted.

5. Janene Sudis

Sudis’ allegations center around her going to the Crazy Horse
strip club and receiving a lap dance, Sudis admits that it “was
not dictated” that she go and that one of the women who had gone to
the basketball game went home instead of going to the strip club.
She went because she thought management would have looked

differently at her if she had not attended. However, Sudis

- 26 -


Defendants retaliated against Kimberly Fritkin and Corinne Miller
in violation of Title VII. Individuals Catherine Copello and
Allison Kennedy also allege retaliation and sex discrimination.
Defendants move for summary judgment on the class and individual
claims. For the reasons stated herein, Defendants’ Motion for
Summary Judgment is granted in part and denied in part.
I. BACKGROUND

The following facts represent a reading of the record that is
favorable to Plaintiffs. Some of the factual matters that are in
dispute have been noted. As Defendants have moved for summary
judgment, all reasonable inferences must be resolved in favor of
Plaintiffs. Valance v. Wisel, 110 F.3d 1269, 1276 (7th Cir. 1997).

Custom is located at 317 West Lake St. in Northlake, Illinois,

Perry Mandera (“Mandera”) is Custom’s sole shareholder and officer.

CEG employs some of Custom’s management team. Custom is a full-

service transportation company that brokers freight to various
outside shippers. It does not actually move freight. Through its
vendors, it offers local cartage, airfreight, truckload and less
than truckload transportation services.

Custom’s sales department selis its products and services to
manufacturers and distributors. ‘he number cf people employed by
the sales department is in dispute, ranging from 10 to 19. Whe
representatives’ responsibilities include attending weekly

meetings, prospecting new business, maintaining current accounts,



E. Retaliation

42 9.S.C. § 2000 prevents an employer or labor organization
from discriminating against someone 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. § 2000(e).

To overcome Defendants’ summary judgment motion in their
Title VIL retaliation claims, Plaintiffs must show either direct

evidence of retaliation or indirect evidence of the employer’s

retaliatory intent using the burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L,Ed,2d 668 (1973). See Durkin v. City of Chicago, 341 F.3d 606,
614 (7th Cir, 2003). Under the direct method, Plaintiffs must show
(1) protected activity, (2) adverse action and (3) a casual
connection between the two. The adverse action requires plaintiff
to show that “a reasonable employee would have found the challenged
action materially adverse, which [] means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination. Burlington Northern & Santa Fe Railway Co. v.
White, 126 $,Ct. 2405 (2006).

Under McDonnell, Plaintiffs must first establish a prima facie
case of discrimination by showing that she (1) engaged in a

protected activity under Title VII; (2) she met the employer's

- 34 -



was due to the Plaintiffs’ sex, and whether the different treatment

affected Plaintiffs’ compensation, terms, conditions, or privileges

of employment. Haugerud v. Amery School District, 259 F.3d 678,

692 (7th Cir. 2001) (citation omitted). Plaintiffs must prove that
they suffered a materially adverse employment decision. In
assessing this, the court may consider the quantitative and
Qualitative changes in the plaintiffs’ employment.

1. Catherine Copello

Copelle alleges that she was discriminated against with regard
to her pay, training and access to job benefits, She argues that
she was treated differently based on her sex when she attended the
Custom golf outing, was requested to entertain at the Crazy Horse,
assigned her territory, and assigned quotes, She alleges that her
car allowance was less than her male co-workers. As evidence of
discriminatory intent, Copello alleges Mandera’s comment once she
was married that she would not be able to do her job because she
would be “flat on her back.” She also alleges it was sex
discrimination because Mandera wanted to meet with both her and her
husband to discuss her compensation,

Defendants argue that Copello cannot show any change in
Copello’s employment status which resulted from discriminatory
intent. Contrary to Copello’s assertion that she was given less of
a car allowance because she was a woman, Defendants submit evidence

that several men had lesser car allowances than Copello. Copello

- 43 -



action was taken against her by a harassing supervisor, See Hall
v. Bodine Electric Co., 276 F.3d 345, 355 (7th Cir 2002) (“An
individual is not a supervisor unless he possesses the authority to
directly affect the terms and conditions of victim's
employment.”) (citation omitted). They allege that any supervisor
alleged to have engaged in harassment was not involved in the
decision to terminate the individual. Further, Defendants argue
that the first prong of Ellerth is satisfied because they took
reasonable and preventive and corrective measures. ‘They claim to
Satisfy the second prong of the affirmative defense because
Plaintiffs failed to utilize the corrective opportunities available
to them.
1. Catherine Copello

First, Defendants argue that Copello cannot prove any
tangible action was taken against her by a harassing supervisor,
They allege that any Supervisor alleged to have engaged in
harassment was not involved in the decision to lower her salary or
offer her lessor perks than her male colleagues, Contrary to
Defendants’ assertions, Copello suffered a tangible action when her
salary was lowered and again when she was terminated. Copelle
alleges harassment by a number of her supervisors, including Mike
Fleming. She also alleges inappropriate comments and conduct by
Mandera that contributed to the alleged hostile environment. It is

not clear from the record who had input into the decision to lower

- 29 -


D. Linda Dyson

Linda Dyson worked at Custom from February 1998 to April 1998
as a night biller, entering computer information related to truck
transportation. She filled out the standard employee paperwork on
her first day and met Boyle. Dyson did not receive an employee
handbook,

Dyson claims that she heard inappropriate sexual and racist
comments in the lunchroom. She also alleges that Marcelino
repeatedly used profanity in front of her. In March, Marcelino
began speaking directly with Dyson. He asked Dyson to “fuck” him.
She told him no and that he had a filthy mouth. At one time, he
also asked her to join him at the Crazy Horse, Dyson also heard
Marcelino cail women “bitches” and “cunts.” When Marcelino walked
by Dyson, he would get too close and rub against her.

Dysen told her supervisors that Marcelino was harassing her
and that he had a filthy mouth sometime in March. They responded

that Marcelino was Mandera’s friend. Dyson quit Custom due to an

altercation was another female employee.

E. Janene Sudis
Sudis worked at Custom from 1995 to 2001, eventually becoming
a manager. After attending a Custom event for managers at the
United Center, Sudis joined coworkers, including Mandera, at the
Crazy Horse, She alleges that she felt pressured to attend in

order to be a team player, While at the Crazy Horse, strippers

-~13-



EEOC v. Catepillar, Ine., 409 F.3d 831 (7th Cir. 2005) that the

court had to accept the EEOC’s administrative determination
concerning alleged discrimination discovered during its
investigation and could not itself review the scope of the
investigation.
C. Sexual Harassment

Pursuant to Title VII, it is “an unlawful employment practice
for an employer . . . to discriminate against any individual 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); see Whittaker
v. Northern Illinois University, 424 F.3d 640, 645 (7th Cir.2005).

Defendants seek dismissal on the grounds that Plaintiffs
failed to establish they were subject to a hostile working
environment. To sustain a claim for hostile work environment, a
plaintiff must establish that she was subject to harassment because
of her sex, that the harassment was “so severe or pervasive as to
alter the conditions of [her] employment and create an abusive
working environment, E.£,0.C, v. Walsh Construction Co., No, 03 ¢
3601, 2006 WL 2524140, at *3 (N.D, Til. Aug. 30, 2006, citing Hilt-
Dyson v. City of Chicago, 282 F.3d 456, 462 (7th Cir. 2002).
“Whether the harassment rises to this level turns on a
constellation of factors that include ‘the frequency of the

discriminatory conduct; its severity; whether it is physically

- 16 -