Flaherty, Flair never had notice of the alleged harassment.

B. Causal Connection

To establish a causal connection, a plaintiff must show that her protected activity (¢.g.,
complaining about the sexual harassment) and her termination “were not wholly unrelated.” See
Franzoni v. Hartmarx Corp., 300 F.3d 767, 772 (7th Cir. 2002). To meet this requirement, the
plaintiff must put forth specific evidence showing that her complaint led to or was a major factor

in her termination — “speculation” will not suffice. See Haywood v. Lucent Tech., Inc., 323 F.3d

524, 532 (7th Cir. 2003). Although temporal proximity is not strictly determinative, “the
employer’s adverse employment action should follow fairly soon after the employee’s protected
expression.” Franzoni, 300 F.3d at 773. The Seventh Circuit has held that a four month gap
between the protected expression and the adverse employment action negates any causal

inference. See Filipovic v. K&R Express Sys., Inc., 176 F.3d 390, 398 (7th Cir. 1999).

Here, Ms. Woolner testified that her last discussion with Hardwick regarding her
problems with Flaherty was in late July or early August of 1998. Flair terminated her
employment, allegedly because of this conversation, on December 4, 1998, four months after she
allegedly complained to Hardwick. Other than the four month time sequence, which is not close
enough in time to infer causation, Ms. Woolner has not put forth any evidence to show that her
termination was in any way related to her alleged complaints. Accordingly, this Court finds that

the causation requirement is not met.

° The fact that Ms, Woolner never specifically complained would usually end the

Court’s analysis. Unlike the typical harassment case, however, the alleged harasser (Flaherty)
was the sole owner and president of Flair. Therefore, a fair argument can be made that Flair did
have notice of the harassment, and even if Ms. Woolner had complained, nothing would have
been done to remedy the situation. Accordingly, this Court will address Flair’s other contentions.

-19-


expressed the desire to limit Title VII’s applicability to conduct which is actually hostile and
discriminatory: “the plaintiff must always prove that the conduct at issue was not merely tinged

with offensive connotations, but actually constituted discrimination because of [membership in

the protected class].” Oncale, 523 U.S. at 81 (emphasis in original).

In determining whether conduct is severe and pervasive enough to alter the conditions of
employment and create a hostile work environment, courts consider both the actual effect of the
conduct on the plaintiff (the subjective test) and what the effect would be on a reasonable person
in the plaintiff’s position (the objective test). Rodgers v. Western-Southern Life Ins. Co., 12 F.3d
668, 674 (7th Cir. 1993).

Whether conduct is objectively hostile or abusive must be determined “by looking [at the

conduct under] all the circumstances.” Harris, 510 U.S. at 23. Factors that are relevant in

determining whether a reasonable person would find conduct hostile are the frequency of the
conduct, its severity, whether it is “physically threatening or humiliating, or a mere offensive
utterance,” and whether it interferes with the employce’s work performance. Id. The Seventh
Circuit has held that isolated and/or off-hand remarks or incidents are insufficient to establish a
hostile work environment. Filipovic v. K&K Express Sys., Inc., 176 F.3d 390, 398 (7th Cir.
1999) (four national origin related comments made over the course of more than a year not
sufficient to create a hostile environment); Rabinovitz Pena, 89 F.3d 483, 489 (7th Cir. 1996)

(“an employee may not be unreasonably sensitive to his working environment”); Saxton, 10 F.3d

at 535 (“inaccessibility, condescension, impatience, and teasing” were “‘merely offensive’”);

North v. Madison Area Assn. for Retarded Citizens - Dev. Centers Corp., 844 F.2d 401, 409 (7th

Cir. 1988) (sporadic use of racial epithets and slurs were insufficient to support a Title VII
claim). Repeated instances of such conduct, however, may be aggregated to support a hostile

-13-



475 U.S. 574, 586 (1986), and may not merely rest upon the allegations or denials in its pleading,
but instead must “set forth specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 248. If the evidence presented is “merely colorable” or is not
“significantly probative,” summary judgment may be granted. Id. at 250-51 (citations omitted).
The court considers the record as a whole, and draws all reasonable inferences in the light most
favorable to the nonmoving party. Regner v. City of Chicago, 789 F.2d 534, 536 (7th Cir. 1986).
Courts are cautious in granting summary judgment in employment discrimination cases

because often issues of intent and credibility are involved. Sarsha v. Sears, Roebuck & Co., 3

F.3d 1035, 1038 (7th Cir. 1993); McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368,

370-71 (7th Cir. 1992). Summary judgment is inappropriate if the court must balance conflicting

indications of motive and intent. Stumph v. Thomas & Skinner, Inc., 770 F.2d 93, 97 (7th Cir.

1985). An employer can only prevail at the summary judgment stage if the record shows that a
reasonable trier of fact must conclude that the employment decision was not based on

discrimination. Veprinsky v. Fluor Daniel, Inc,, 87 F.3d 881, 893-94 (7th Cir. 1996).

-4-


Cc. Similarly Situated Employees

To prevail under the indirect method, the plaintiff must establish “only [she], and not any
otherwise similarly situated employee who did not complain,” about the alleged harassment, was
terminated. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th Cir. 2004) (emphasis
added), To show that another employee was “similarly situated” the plaintiff must show that the
other employee was “directly comparable to [the plaintiff] in all material respects . . .. There
must be no meaningful distinctions between [them].” Little v. Ill. Dept. of Revenue, 2002 WL
992623, at *4 (N.D. Ill. May 15, 2002), aff'd, 369 F.3d 1007 (7th Cir. 2004). Additionally, the
plaintiff must show that “the similarly situated employee [was] disciplined, or not, by the same
decision maker who imposed [the] adverse employment action on the plaintiff.” Id. at 1012.

Here, Ms. Woolner contends that three Flair employees (Omichinski, Tubay, and Herr)
are similarly situated to her. Omichinski and Tubay, however, complained to Hardwick about
the alleged harassment. Thus, they are not similarly situated. As for Herr, after allegedly being
harassed by Flaherty, she supposedly complained to Ms. Woolner but not to management.
Ms. Woolner, however, passed along her grievance to Hardwick. Beyond the fact that Herr never
complained directly to management, Ms. Woolner has not offered any evidence to show that her
and Herr were similarly situated. Consequently, without more, this Court finds that Ms. Woolner
has failed to present any evidence that she was treated less favorably than a similarly situated
employee who did not complain.

Accordingly, this Court GRANTS summary judgment as to the retaliation claim because
Ms. Woolner has failed to present evidence that: (1) she specifically complained to management
about Mr. Flaherty’s alleged sexual harassment; (2) there is any causal connection between her
alleged complaint and her termination; and (3) she was treated less favorably than similarly

-20-



CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion for Summary
Judgment [52-1] as to all counts and claims except for Ms. Woolner’s claim for hostile

environment sexual harassment in Count IV. It is so ordered.

ENTER: Snel haan

U.S. DISTRICT COURT G oe

BLANCHE M. MANNING
DATED: _& [26 lof

-22-



A. Complaint Requirement

To prevail on a claim for retaliation under either the indirect or direct method, it is
“axiomatic” that the plaintiff prove that she actually complained about the alleged harassment.
Durkin, 341 F.3d 614-15 (“[a]n employer cannot retaliate if there is nothing for it to retaliate
against”). The employee must specifically complain about the sexual harassment — vague and

general complaints do not suffice. See id. An employee must do more than complain that “she

felt picked on,” she must specifically state that the harassment is based on her “sex or gender,
which is what Title VII requires.” Sitar, 344 F.3d at 727. The reasoning behind this requirement
is that “[aJn employee can honestly believe that she is the object of [harassment], but if she never
mentions it, . . . [the} employer cannot retaliate when it is unaware of any complaints.” Id.

Here, Flair contends that, based on Ms. Woolner’s deposition, she failed to make a
complaint sufficient to invoke the protections of Title VIL. After carefully reviewing Ms.
Woolner’s deposition, this Court finds that she did not specifically complain about the alleged
harassment and thus, cannot bring a claim for retaliation.®

For example, at her deposition, when asked if she complained about the October 1997
incident, where Flaherty allegedly gave her a gift and then “hugged” her, Ms. Woolner stated that
she told Flaherty that he was “hurting” her. (Dep. Tr. at 101, Ex. B. Def’s Appx.) She also said
that shortly after the October 1997 incident, at her year-end review, she told her direct manager
(Stan Hardwick) that Flaherty “was an at-risk person and that his aggressive behavior towards
people was worrisome.” (Id, at 102.) When asked if she said anything else to Hardwick or

explained what she meant regarding an “at-risk person,” Ms. Woolner replied, “No. Mr.

8 In reaching this finding, for the reasons discussed above, the Court disregards

statements in Ms. Woolner’s affidavit which conflict with her deposition testimony.

-17-



1. Ms. Woolner’s Deposition Testimony and EEOC Charge
In her Memorandum Opposing Summary Judgment, Ms. Woolner alleges that

she was sexually harassed on several occasions between October 1997 and December 1998:

. in October of 1997, Flaherty gave her a gold bracelet and then “hugged” her;
. on July 31, 1998, Flaherty compared a map of the state of Florida with a “dildo”;
. on four occasions in August through October of 1998, Flaherty “leaned closely

over” Ms. Woolner while she was working at her computer and touched her in a
“sexually offensive manner”; and
. near the end of 1998, Flaherty “hugged” Ms. Woolner.
Although denying all of the above allegations, Flair contends that this Court should only consider
three of the above acts in determining the hostile environment claim because Ms. Woolner only
mentioned three acts in her deposition and in her EEOC charge.
A plaintiff in an employment discrimination case may not defeat a motion for summary

judgment “by submitting an affidavit containing conclusory allegations which contradict plain

admissions in [a] prior deposition.” Adusumilli v. City of Chicago, 164 F.3d 353, 360 (7th Cir.

1998). “[W]here a deposition and affidavit are in conflict, the affidavit is to be disregarded” and
the court should only consider the deposition, “unless it is demonstrat[ed] that the statement in
the deposition was mistaken.” Amadio v. Ford Motor Co., 238 F.3d 919, 926 (7th Cir, 2001).
Here, in her deposition, Ms. Woolner testified that she was subjected to three incidents of
sexual harassment by Flaherty: (1) in October of 1997, he gave her a gold bracelet and then
hugged her (Dep. Tr. at 97, Ex. B. Def’s Appx); (2) in July of 1998, while she was sitting at her
desk, he “closely leaned over” her and rubbed his “private part” on her back (id, at 106-08); and
(3) in late July/early August of 1998, he compared a map of Florida to a “dildo.” (Id. at 119).
After describing these three incidents, Ms. Woolner was asked if there were any other incidents

she believed constituted sexual harassment. (Id, at 121-22.) In response, she answered “no.”

-9-


showing that: (1) he was a member of the protected age group; (2) he was performing to his
employer's legitimate expectations; (3) he was subject to materially adverse employment actions;

and (4) younger employees were treated more favorably.’ Sirvidas, 60 F.3d at 377.

Once made, the prima facie case creates a rebuttable presumption of discrimination, and
the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for terminating the plaintiff. Taylor, 69 F.3d at 779. If the employer articulates a
nondiscriminatory rationale for the employment decision, the burden of production shifts back to
the plaintiff to prove that the rationale is a pretext, Le. a lie, sham, phony explanation, which
masks the employer's intentional discriminatory animus. Id. at 779-80. The plaintiff can
demonstrate a pretext by producing direct or circumstantial evidence indicating that the decision
was motivated by discriminatory animus or “is unworthy of credence.” Rand v. CF Indus., 42
F.3d 1139, 1145 (7th Cir. 1994),

Here, Flair contends that Mr. Woolner has failed to establish an ADEA claim because he
has not presented evidence that: (A) he was replaced by a “substantially” younger employee; (B)
he satisfactorily performed his job; and (C) even if he established a prima facie case, he has not
shown that Flair’s legitimate proffered reason for terminating him was pretextual. Because the
Court finds that Mr. Woolner has not presented sufficient evidence to show that he was replaced
by a “substantially” younger employee, the Court will only discuss Flair’s first contention.

To meet the fourth prong of the McDonell Douglas test for the ADEA, the plaintiff must

show that “substantially younger” employees were treated more favorably. Hartley v. Wisconsin

‘ In contesting a motion for summary judgment, the plaintiff need not establish

proof which would allow him to prevail on the merits, only that there is a genuine issue of

material fact with regard to each element. See Lindsey v. Baxter 1267 Healthcare Corp., 757 F.

Supp. 888, 893 n.9 (N_D. III.1991).

6-


ANALYSIS

Flair seeks summary judgment on: (1) Mr. Woolner’s age discrimination claim,
(I) Ms. Woolner’s hostile environment sexual harassment claim, (III) both Woolners’ retaliation
claims; and (IV) their breach of contract claims. The Court will discuss each of these contentions
in turn.
I. ADEA Claim

The ADEA prohibits employers from discriminating against employees, who are over 40
years of age, based on the employees’ age, 29 U.S.C. § 631(a), with respect to compensation,
terms, conditions, or privileges of employment. Id. at § 623(a). To maintain a claim under the
ADEA, employees must establish that they would not have suffered adverse treatment “but for”
the employer’s motive to discriminate based on the employees’ age. Taylor v. Canteen Corp., 69
F.3d 773, 779 (7th Cir. 1995), To make a showing of discrimination to defeat a motion for
summary judgment, a plaintiff may present either direct or indirect evidence of age
discrimination. Id.

Because Mr. Woolner has not put forth any direct evidence of age discrimination, this
Court will apply the indirect burden-shifting method of proof set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).? See Sirvidas v. Commonwealth Edison Co., 60 F.3d 375,

377 (7th Cir. 1995); Schultz v. General Elec. Capital Corp., 37 F.3d 329, 333 (7th Cir. 1994).

Under this method, a plaintiff must first establish a prima facie case of age discrimination by

3 The fact that a Flair manager admitted that the “advertising industry [is] basically

a young industry,” is not direct evidence that Flair considered Mr. Woolner’s age in deciding to
terminate him. This is particularly true given that Flair replaced Mr. Woolner (age 50) with an
employee who was 42 years old, who also fell within the scope of the ADEA.

-5-



Hardwick knew exactly what I was talking about.” (Id, at 103.) She, however, admitted that she
did not “discuss the October 1997 incident specifically” with Hardwick and did not specifically
mention the incident to anyone else. (Id. at 104.)

Similarly, Ms. Woolner testified that although she did not go into specific detail, she had
one conversation with Hardwick regarding the July 1998 incident where Flaherty allegedly
“leaned closely over” Ms. Woolner while she was working at her computer and touched her in a
“sexually offensive manner” (¢.g., with his private part while sexually aroused). Immediately
after the incident, Ms. Woolner told Hardwick that “something had to be done about [Flaherty]
and the work we were doing,” and that she “felt he should not come down to our floor to work.”
(Id. at 113.) In response, Hardwick allegedly stated that “it [meaning the current project] will all
be over soon” and that “he knew that it was stressful.” (Id. at 113.)

A week after the July 1999 incident, Ms, Woolner complained to Hardwick regarding
Flaherty and another female employee. Ms. Woolner stated that “Mr. Flaherty’s working style of
leaning over women . . . was an aggressive and offensive way to work and that . . . it needed to be
addressed.” (Id. at 115.) In response, Hardwick stated that he knew Flaherty could be very hard
to work with because he was “verbally abusive” to all employees. (Id. at 117-18.)

In sum, Ms. Woolner testified that the above three conversations were the only
complaints that she made regarding her alleged harassment by Flaherty. (Id, at 126-27.)
Unfortunately, for Ms. Woolner, these conversations were too vague in that she never
specifically relayed even the most general of details of the alleged sexual harassment by Flaherty.

Therefore, because she never specifically complained of the sexual nature of her troubles with

~-18-


Here, Mr. Woolner was 50 years old when Flair terminated him and replaced him with a
42 year-old employee. Therefore, because the age disparity is only 8 years, the ADEA claim
must be dismissed unless Mr. Woolner presents direct evidence that Flair considered his age a
significant factor in its employment decision. As discussed above, however, Mr. Woolner has
offered no such direct evidence. Accordingly, this Court GRANTS the Motion for Summary
Judgment as to Count I (the ADEA claim).
Il. Hostile Work Environment Claim

Flair also moves for summary judgment on Ms. Woolner’s hostile work environment
claim (Count IV) on the grounds that: (1) she has failed to present sufficient evidence to establish
her claim; and (2) even if a hostile work environment existed, Flair took appropriate preemptive
and corrective measures. Before addressing these issues, however, the Court must first
determine precisely what incidents this Court may consider in assessing whether a hostile work
environment existed at Flair.

A. Alleged Incidents of Sexual Misconduct

Ms. Woolner contends that the Court should consider the following incidents of alleged
sexual harassment in assessing her hostile environment claim: (1) the six instances of Flaherty
sexually harassing Ms. Woolner; and (2) Flaherty’s alleged harassment of other women
employees. Flair, however, contends that this Court should only consider three incidents of
alleged sexual misconduct because: (1) Ms. Woolner only alleged three acts in her EEOC charge
and in her deposition; and (2) sexual harassment of other employees is not admissible under
Federal Rules of Evidence 404(b) and 403. The Court will discuss each of these contentions in

turn.

-8-



Minuue Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; ; Sitting Judge if Other
or Magistrate Judge Blanche M. Manning pity ‘Assigned yuler
CASE NUMBER 01 C 6043 DATE August 26, 2004
CASE Woolner v. Flair
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 of the motion being presented.]

MOTION:

DOCKET ENTRY:

a) o Filed motion of [ use listing in “Motion” box above.]

(2) i) Brief in support of motion due

(3) a Answer brief to motion due___._ Reply to answer brief due.

(4) im Ruling/Hearing on set for at

(5) Q Status hearing{held/continued to) [set for/re-set for}on___——sset fora

(©) a Pretrial conference[held/continued to] [set for/re-set for]on ss setfor_ at
ie) Qo Trial[set for/re-set for) on att

(8) oO {Bench/Jury trial] [Hearing] held/continued to at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

OFRCP4(m) General Rule 21 OFRCP41(a)(1) OO FRCP41(a)(2).

(10) O [Other docket entry] For the reasons set forth in the attached Memorandum and Order, the Court
GRANTS Defendants’ Motion for Summary Judgment [52-1] as to all counts and claims except for
Ms. Woolner’s claim for hostile environment sexual harassment in Count IV. It is so ordered.

(11) a (For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court. Document

Number
No notices required.

number of notices

Y | Notices mailed by judge's staff. 20

Notified counsel by telephone. date docketed

Docketing to mail notices.

Mail AO 450 form,

Ng depufy ini (9

Copy to judge/magistrate judge.

dare mailed notice
courtroom an

RTVAHS deputy’s
initials

Date/time received in
central Clerk's Office mailing deputy initials



F.3d 1207, 1217 (10th Cir. 2002); Heyne v. Caruso, 69 F.3d 1475, 1479-80 (9th Cir. 1995).
Rule 403 provides that:
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.

Because courts look to all the “surrounding circumstances” in determining whether sexual

harassment was pervasive, evidence of sexual harassment directed at other employees is relevant

in assessing a hostile environment claim. See Valadez v. Uncle Julio’s of Ill., Inc., 895 F. Supp.

1008, 1013 (N.D. Ili. 1995) (denying summary judgment of a “hostile environment sexual
harassment” claim, the court considered “evidence of sexual harassment directed at other

employees of the same sex as plaintiff’). See also Perry v. Ethan Allen, Inc., 115 F.3d 143, 151

(2d Cir. 1997) (evidence of sexual harassment of women employees other than the plaintiff was
relevant to show a pervasive or continuing pattern of sexual harassment in a hostile environment
claim).

Here, Ms. Woolner contends that the following allegations of sexual harassment of other

Flair employees by Flaherty is admissible to prove their hostile environment claim:

. Flaherty “dropping his pants to the floor in front of female Flair employees”;

. in September of 1997, a month before a similar incident with Ms. Woolner,
Flaherty gave two other female Flair employees jewelry and then solicited them
for sex; and

. Flaherty allegedly “leaned closely over” other female employees while they were

working at their desks and touched at least one in a “sexually offensive manner.”
Given that the above events are very similar to Flaherty’s alleged sexual harassment of
Ms. Woolner and occurred near the time of her alleged harassment, the Court finds that they are
relevant to show intent, motive, or absence of mistake under Rule 404(b) and in examining
whether the alleged sexual harassment was pervasive.

-ll-



(Id.) Consequently, based on the above Seventh Circuit decisions, this Court will not consider
the additional incidents of sexual harassment which were disclosed for the first time in
Ms. Woolner’s affidavit submitted in opposition to the motion for summary judgment.
2. Harassment Against Other Female Employees
Next, the Court turns to Flair’s contention that Flaherty’s alleged sexual harassment of
other female employees is not admissible under Federal Rules of Evidence 404(b) and 403.
Rule 404(b) provides that:
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident,
provided that upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature of any such evidence it
intends to introduce at trial.
Applying Rule 404(b) in the context of sexual harassment/hostile environment cases, courts
generally hold that while evidence of the defendant’s alleged sexual harassment of other

employees cannot be used to show that the defendant harassed the plaintiff, it is admissible to

show discriminatory intent, preparation, or absence of mistake. See Wilson v. Muckalla, 303

5

Additionally, Flair contends that the incident of Flaherty “rubbing” his private part
on Ms. Woolner should not be considered because she did not specifically mention it in her
EEOC charge. As a general rule, a plaintiff may only include claims in her judicial complaint
that were included in the EEOC charge. Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th
Cir. 1994). This rule serves the dual purpose of allowing the EEOC and the employer an
opportunity to settle the dispute and to give the employer warning of the complained of conduct.
Id. Because EEOC charges are frequently completed by laypersons and not lawyers, however, a
claim that was not asserted in the EEOC charge may still be cognizable in a judicial complaint if
the claim is “like or reasonably related” to the allegations in the EEOC charge or could
reasonably be expected to grow out of an EEOC investigation. Jenkins v. Blue Cross Mut. Hosp.
Ins., Inc., 538 F.2d 164, 167 (7th Cir. 1976). Here, because the alleged touching of Ms. Woolner
by Flaherty’s private part is reasonably related to her other allegations of sexual harassment, it is
therefore irrelevant that it was not mentioned in her EEOC charge.

-10-



Bell, Inc., 124 F.3d 887, 892-93 (7th Cir. 1997). In the context of an employment termination

case, the fact that the employer replaced the plaintiff with “someone substantially younger is a
reliable indicator of age discrimination.” Balderston v. Fairbanks Morse Engine Div. of Colec
Idus., 328 F.3d 309, 321-22 (7th Cir. 2003). Setting forth a bight-line rule, the Seventh Circuit
equates “substantially younger” as at least a ten year age difference. Id. An age “disparity less

than ten years is ‘presumptively insubstantial.’” Kariotis v. Navistar Int’ Trans. Corp., 131 F.3d

672, 677 n.1 (7th Cir. 1997) (quoting Hartley, 124 F.3d at 893). Ifthe age difference is less
than ten years, the plaintiff may still “present a trial claim if [he] directs the court to evidence that
[his] employer considered [his] age to be significant” in the making of the contested employment
decision. Hartley, 124 F.3d at 893.

Following the above cases, courts strictly construe the ten year rule. See Raude v.
Kimberly-Clark Corp., 219 F.3d 612, 619 (7th Cir, 2000) (affirming summary judgment for the
employer where the alleged similarly situated employees were only seven and 9.5 years younger
than the plaintiff); Pitasi v. Gartner Group, Inc., 184 F.3d 709, 717 (7th Cir. 1999) (affirming
summary judgment for the employer, the Seven Circuit held that an eight year age difference “is
not significant enough . . . to create a reasonable inference of age discrimination); Dell’ Aringa v.
SBC Global Svs, Inc., 2002 WL 31109447 at *6 (N.D. Ill. Sept. 20, 2002) (granting summary
judgment for the employer because the alleged similarly situated employee was only nine years

younger than the plaintiff); Smolek v. Village of Palos Park, 2001 WL 699953, at *4 (N.D. Ill.

June 21, 2001) (in rejecting the plaintiffs contention that “nine years and ten months is close
enough” to ten years, the court held that such an argument would “undermine the Seventh
Circuit’s attempt to create a bright line test for determining whether an allegation of age disparity
is sufficient to give rise to a claim for discrimination”).

-7-


situated employees who did not complain about Flaherty’s conduct.
IV. State Law Claims

Flair has also moved for summary judgment on Counts III and VI, in which the Woolners
allege breach of contract, breach of implied covenant of good faith, and promissory estoppel
under Illinois law. The Woolners contend that when Flair hired them it orally agreed that their
employment was to be a “long-term job.” (Mem. in Opp. at 32-33.) Unfortunately for the

Woolners, agreements for “long-term” employment fall within the statute of frauds. See Kercher

y. Forms Corp. of America, Inc., 630 N.E.2d 978, 981 (Ill. App. Ct. 1994). The promissory
estoppel claim also fails because the doctrine of promissory estoppel is not an exception to the
statue of frauds. Evans v. Flour Dist. Co., Inc., 1985 WL 1998, at *4 (N.D. Ill. June 28, 1985)
(citing Illinois cases). As for the claim for implied covenant of good faith, Illinois does not
recognize claims for breach of an implied covenant. Id. at *5. Accordingly, this Court GRANTS

the motion for summary judgment as to Counts III and VI.

-21-


. gave other female Flair employees jewelry and then solicited them for sex; and
. leaned closely over” at least two other female employees while working and
touched them in a “sexually offensive manner.”
Four months after Ms. Woolner allegedly complained about the sexual harassment, Flair
terminated the Woolners based on their alleged poor work performance. The Woolners then
brought the instant action.
STANDARD OF REVIEW

Summary judgment is appropriate “if 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). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);

Cheek v. Western & Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). A genuine issue of

material fact is one that might affect the outcome of the lawsuit, and factual disputes that are

irrelevant will not be considered. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 249 (1986). In

determining whether a genuine issue of material fact exists, the court must construe the alleged

facts in a light most favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S.

654, 655 (1962); Dale v. Chicago Tribune Co., 797 F.2d 458, 460 (7th Cir. 1986).

The moving party carries the initial burden of establishing that no genuine issue of
material fact exists. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323. Once the moving
party has met its burden, the nonmoving party must set forth specific facts showing that there is a

genuine issue for trial. Fed. R. Civ. P. 56(e); Becker v. Tennenbaum Hill Assoc., Inc., 914 F.2d

107, 110 (7th Cir. 1990). The nonmoving party must do more than “show that there is some

metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

3-


environment claim. See.e.g., Hostetler v. Quality Dining, Inc., 218 F.3d 798, 808 (7th Cir. 2000)

(“‘[t]here is no magic number of incidents required to establish a hostile environment”).

Here, after carefully reviewing the parties’ submissions, this Court finds that
Ms. Woolner has put forth the following admissible evidence in support of her hostile
environment claim:

Acts Directed Toward Herself

. in October of 1997, Flaherty gave her a gold bracelet and then roughly hugged
her;

. in July of 1998, while she was sitting at her desk, Flaherty “closely leaned over”
her and rubbed his “private part” on her back; and

. in July/August of 1998, Flaherty compared a map of the state of Florida a “dildo”;

Acts Against Other Female Employees

. Flaherty “dropp[ed] his pants to the floor in front of [other] female flair
employees”;

. in September of 1997, a month before the incident with Ms. Woolner, Flaherty
gave two other female Flair employees jewelry and then solicited at least one of
these female employees for sex;

° Flaherty allegedly “leaned closely over” other female employees while working
and touched at least one of them in a “sexually offensive manner”

Viewing these facts in favor of Ms. Woolner and considering the totality of the
circumstances, this Court finds that she has put forth sufficient evidence to show her work
environment at Flair was both subjectively and objectively hostile, altering the conditions of her
employment and creating an abusive work environment.

Cc. Preemptive and Corrective Measures

Flair further contends that even if a hostile work environment existed, summary judgment
is appropriate under Burlington Industry, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v.
City of Boston, 524 U.S. 775 (1998) (“the Ellerth/Faragher Affirmative Defense”) because it

“exercised reasonable care to prevent sexually harassing behavior, [which Ms.] Woolner

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circumstances,” she may use the indirect method, which is modeled after McDonnell Douglas,

Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640, 643 (7th Cir. 2002). Under the

indirect method, the plaintiff must show that: “(1) she engaged in a statutorily protected activity;
(2) she performed her job according to her employer’s legitimate expectations; (3) despite her
satisfactory job performance, she suffered an adverse action from the employer; and (4) she was
treated less favorably than similarly situated employees who did not engage in statutorily
protected activity.” Sitar, 344 F.3d at 728. If the plaintiff meets these requirements, the burden
shifts to the defendant to articulate a legitimate reason for its actions. Id. If the defendant meets
this burden, then the plaintiff must show that its proffered reason is pretextual. Id. If the plaintiff
cannot show pretext, it cannot proceed with its retaliation claim and summary judgment is
appropriate. Id.

Here, Flair contends that Ms. Woolner has not established a prima facie case under either
the direct or indirect method because she failed to show that: (1) she specifically complained to
management about Mr. Flaherty’s sexual harassment, and therefore, she cannot show that she
engaged in a protected activity; (2) there is any causal connection between her alleged complaint
and her termination; and (3) she was treated less favorably than similarly situated employees who
did not engage in the protected activity.’ The Court will address each of these contentions in

turn.

7 Mr. Woolner’s claim for retaliation appears to stem from the allegation that he

was terminated because his wife complained about sexual harassment. Because he did not
actually complain, he cannot prevail. Moreover, Mr. Woolner has not put forth any evidence
demonstrating the other elements of a prima facie case.

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BACKGROUND’

Flaherty is the founder and sole owner of Flair, a marketing company located in Chicago,
Illinois. The Woolners, husband and wife, are former employees of Flair, both of whom were
terminated in December of 1998. Prior to working at Flair they did “freelance” work for Flair
and other marketing/advertising agencies. Flair hired Mr. Woolner first in May of 1990 and Ms.
Woolner in June of 1995. Although neither Woolner had a written employment contract, they
both allege that Flair promised that their employment would be “long-term.”

The Woolners brought this action after Flair terminated their employment for alleged
deficiencies in their job performance. The Woolners contend that they were fired based on
Mr. Woolner’s age (50) and Ms. Woolner’s complaints about sexual harassment. The Woolners
allege that Ms. Woolner was sexually harassed on several occasions between October 1997 and

December 1998:

. in October of 1997, Flaherty gave her a gold bracelet and then “hugged” her;
. on July 31, 1998, Flaherty compared a map of the state of Florida with a “dildo”;
. on four occasions in August through October of 1998, Flaherty “leaned closely

over” Ms. Wooiner while she was working at her computer and touched her in a
“sexually offensive manner”; and
. near the end of 1998, Flaherty “hugged” Ms. Woolner.
The Woolners also allege that Flaherty sexually harassed other female employees when he

allegedly:

. “dropp[ed] his pants to the floor in front of female flair employees”;

2 The facts in the Background section are derived from the parties’ Local Rule 56.1

statements and other pleadings. The facts in Flair’s Local Rule 56.1(a)(3) statement that the
Woolners did not controvert in their Local Rule 56.1(b)(3)(A) statement are deemed admitted for
purposes of this motion. Schultz v. Serfilco, Lid., 965 F.2d 516, 519 (7th Cir. 1992). Likewise,
the facts that the Woolners provided in their Local Rule 56.1 statement that Flair did not
controvert are deemed admitted. Id.

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
PAUL WOOLNER AND SUSAN WOOLNER, ) ear
) NOCKETes
) Case No. 01 C 604, 2004
Plaintiffs, ) Aug 30
v. ) Judge Blanche M. Manning
)
FLAIR COMMUNICATIONS AGENCY, INC., )
AND LEE F. FLAHERTY, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Paul and Susan Woolner (collectively, “the Woolners”) brought this action
against their former employer, Flair Communications Agency, Inc. and its owner, Lee Flaherty
(collectively, “Flair”). Mr. Woolner asserts discrimination and retaliation claims under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (Count I) and the Illinois
Human Rights Act (“IHRA”), 775 ILCS 5/8-111(C) (Count II). Ms. Woolner alleges hostile
environment sexual harassment and retaliation based on sex, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Count IV) and the INRA (Count V).
Additionally, the Woolners both assert claims for breach of contract and promissory estoppel
under Illinois law (Counts Ill and VI). The present matter comes before this Court on Flair’s
Motion for Summary Judgment. For the reasons set forth herein, the Court GRANTS this
motion in part as to Counts I, III, and VI in their entirety and as to the retaliation claim in Count
IV but DENIES the motion as to Ms. Woolner’s claim for hostile environment sexual

harassment in Count IV.'

1 In a prior Minute Order, this Court GRANTED Flair’s motion to dismiss Counts
I and V.


Accordingly, in determining whether Ms. Woolner has put forth sufficient evidence to
avoid summary judgment on her hostile environment claim, the Court will consider the above
three allegations of harassment to Ms. Woolner and the incidents of alleged harassment of other
female employees.

B. Prima Facie Case of Hostile Environment

To establish a prima facie case of hostile environment sexual harassment, a plaintiff must
show: (1) harassment because of her membership in a protected class, Oncale v. Sundowner

Offshore Serv., Inc., 523 U.S. 75, 81 (1997), that (2) was severe and pervasive enough to alter

the plaintiff's working conditions, Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), (3)

which was unwelcome, id. at 68, and (4) the employer did not act promptly to effectively correct

or prevent the harassment. Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 535-36 (7th Cir.

1993).

In Meritor, the Supreme Court held that “[flor ... harassment to be actionable, it must be
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive work environment.” 477 U.S. at 67. The Court further explained in National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116-17 (2002), that “when the workplace is permeated
with discriminatory intimidation, ridicule, and insult, ‘that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working environment,
Title VII is violated,” A discriminatory abusive work environment, even one that does not
seriously affect employees” psychological well-being, can and often will detract from employees”
job performance, discourage employees from remaining on the job, or keep them from advancing
in their careers. Harris v. Forklift, 510 U.S. 17, 22 (1993).

While the Supreme Court has been sympathetic to harassment claims, it has also

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unreasonably failed to take advantage of.” The Ellerth/Faragher Affirmative Defense, however,
does not apply when the person doing the harassing “may be treated as [the employer’s] proxy,”
which includes the owner and/or president of the employer. Faragher, 524 U.S. at 789-90. Here,
because Flaherty was the founder, sole owner, and president of Flair, the Ellerth/Faragher
Affirmative Defense is not applicable in this case.

Accordingly, this Court DENIES summary judgment as Ms. Woolner’s the hostile
environment claim in Count IV.

II. ‘Retaliation

Flair also seeks summary judgment on the Woolners’ retaliation claims on the grounds
that the Woolners have failed to present sufficient evidence to establish a prima facie case, and
even if they have, Flair has shown a legitimate reason for terminating their employment.

The Seventh Circuit has established “two ways” for a plaintiff to make a prima facie case
for retaliation under Title VII - “the direct method and the indirect method.” Durkin v. City of
Chicago, 341 F.3d 606, 613 (2003). Under the direct method, the plaintiff must present
evidence of: “(1) a statutorily protected activity; (2) an adverse action by the employer; and (3) a

causal connection between the two.” Sitar v. Indiana Dept. of Trans., 344 F.3d 720, 728 (7th Cir.

2003).

Where the plaintiff “has no actual evidence of. . . retaliation, but just some suspicious

6 Title VII (42 U.S.C. § 2000e-3(a)) provides that:

It shall be an unlawful employment practice for an employer to discriminate
against any of his employees or applicants for employment .. . because he has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.

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