4] 20; Pl’s Answer. to Def.’s 56.1 32. In contrast, many other employees working in Gonzalez’s
department were engineers. Engineers can take as long as six to twelve months to learn the
nuances of NeuStar’s system and become fully productive, which makes them difficult and costly
to replace. Def.’s 56.1 921.

In December 2001, NeuStar decided to reduce costs by closing the Chicago facility and
relocating those operations to Virginia. Def.’s 56.1 16. In early March 2002, Steve Cory,
another Vice President at NeuStar, began supervising some of Guo’s employees. Cory became
Gonzalez’s new manager at this time. Cory Aff. 4 10. On March 15, 2002, Cory made the
decision to terminate Gonzalez’s employment instead of offering her a relocation package.
Def.’s 56.1 4] 18. Cory viewed Gonzalez’s position as largely clerical in nature and not difficult
or costly to replace. Def.’s $6.1 4] 22; Pl.’s Answer to Def.’s 56.1 § 22.

However, Gonzalez did tell Ky Quan, another employee Cory supervised, about the
January 29, 2002 incident with Wiorek. Quan became Gonzalez’s second-level manager
between March and April of 2002. Quan also told Gonzalez that he told George Guo about
Gonzalez’s sexual harassment claim. Gonzalez Dep. at 141-42. At some time between March
and May of 2002, Quan learned that Cory had decided to terminate Gonzalez’s employment
rather than relocate her. Def.’s 56.1 4] 24.

More than ten other Chicago-based employees, none of whom complained about any
sexual harassment problems, were terminated in connection with the closing of the Chicago
facility at or around the same time Gonzalez was terminated. Def.’s 56.1 | 23. One employee
who was terminated was Toni Hopkins. Cory also viewed Hopkins’s position as largely clerical

in nature and not difficult or costly to replace. Def.’s 56.1 22; Pl.’s Answer to Def.’s 56.1 § 22.


supervisor. The two did not work together in close quarters, In addition, Gonzalez never saw
Wiorek after the incident took place because Wiorek was suspended and then fired.

Gonzalez contends that a genuine issue of material fact exists on this issue because
NeuStar was on notice of Wiorek’s previous acts of harassment and created the circumstances
that led to the incident by failing to appropriately discipline Wiorek. However, “the impact of
‘second-hand’ harassment is obviously not as great as the harassment directed toward” the
victim. Patt v. Family Health Sys., 280 F.3d 749, 754 (7th Cir. 2002); see also Mason y. S.
Illinois Univ., 223 F.3d 1036, 1047 n.9 (7th Cir. 2000) (explaining that “through the grapevine”
or “second-hand” comments about harassing conduct is not enough to be “severe or pervasive”);
of. Ngeunjuntr v. Metro. Life Ins. Co., 146 F.3d 464, 467 (7th Cir. 1998) (finding that racially
discriminative remarks made outside the presence of the plaintiff were not actionable). The
employer’s knowledge of these prior incidents does not show whether a hostile work
environment existed; but, rather, it shows whether a basis for the employer’s liability exists.
Brooks y, City of San Mateo, 229 F.3d 917, 925 n.5 (9th Cir. 2000).

Here, Gonzalez alleges that various co-workers told Gonzalez that they were also subject
to sexual harassment by Wiorek. However, if Wiorek’s conduct of January 29, 2002, that
Gonzalez witnessed is not sufficiently pervasive, then hearing about other incidents cannot be
found to be a hostile work environment. NeuStar’s knowledge of any prior events may be
relevant only to show a basis for employer liability once harassing conduct has been established.
Therefore, the “second-hand” statements, describing similar conduct made outside the presence
of Gonzalez, are not sufficiently severe or pervasive enough to raise a genuine issue of material

fact even though NeuStar may have had knowledge of these events.



However, Quan did not believe that he even had the option of allowing Gonzalez to
continue in her job past June 2002. Cory, Quan’s superior, had already decided that Gonzalez’s
employment would terminate at the end of June. On the other hand, Campbell was not slated to
be terminated at the end of June; Quan’s superiors offered Campbell a relocation package and
asked her to stay beyond June. Quan Aff. { 6.

During July 2002, Campbell spent at least 50% of her time handling her own duties,
approximately 30% of her time handling Gonzalez’s former duties, and approximately 20% of
her time handling the receptionist’s former duties. Def.’s 56.1 | 30. On or about
August 1, 2002, Campbell resigned. By that time, NeuStar had converted to Oracle database
programs, instead of Access database programs, for the most time consuming SLR reports.
Using Oracle reduced the time required to run the reports from several days each to several
hours. Def.’s 56.1 31.

ANALYSIS

Gonzalez brings two separate claims for discrimination under Title VII. First, Gonzalez
alleges that she was the victim of sexual harassment because of the hostile work environment at
NeuStar based on the incident with Wiorek on January 29, 2002. Secondly, Gonzalez asserts that
NeuStar retaliated against her for reporting this allegedly hostile work environment by:

(1) terminating Gonzalez’s employment instead of offering her a relocation package that was
offered to other employees; and (2) terminating Gonzalez on June 30, 2002, even though her

function was performed in Chicago for a few more months during the transition period.



Most of these terminations took effect in May or June of 2002, However, the Chicago
facility did not close at that time. There was a transition period, during which functions were
gradually transferred from Chicago to Virginia. Later in 2002, a few additional employees that
were kept on to help during the transition period were terminated. Cory Aff. ¥ 19.

One of the employees whom NeuStar retained during the transition period was Katie
Campbell. Prior to June 2002, Campbell had a wide variety of duties. Campbell served as
NeuStar’s point person with outside auditors, who regularly audited the corporation. Moreover,
Campbell had various financial responsibilities, such as assisting in developing a budget for
Gonzalez’s department and tracking various expenses to ensure that this department stayed
within its budget. Campbell also processed the payroll, had human resources and recruiting
duties, and represented the entire department in monthly meetings with personnel from the main
office in Virginia. Def.’s 56.1 425. Some of Campbell’s duties required her to make
discretionary decisions. Furthermore, Campbell’s duties required her to keep informed about all
major projects and problems in her department, including issues regarding the data that Gonzalez
downloaded and tabulated. Def.’s 56.1 27.

Quan decided that, during the transition period, Campbell would continue to perform her
own duties and would also assume: (1) Gonzalez’s duties of running the computer programs to
download data and tabulate it for reports and (2) receptionist’s duties. Def.’s 56.1 27, Quan
Aff. 4 1. Quan believed that Campbell could easily learn to perform Gonzalez’s and the
receptionist’s duties, but neither of them could easily learn Campbell’s duties. Quan also
believed that having Campbell temporarily assume Gonzalez’s duties might facilitate some

improvements in the process for downloading and tabulating data. Def.’s 56.1 28.


generally severe or pervasive enough to alter the conditions of employment. EEOC yv. Champion
Int’l Corp., 1995 U.S. Dist LEXIS 11808, at * 26 (N.D. Ill. Aug. 1, 1995) (“Champion Int'l). A
“single incident, which [is] of very limited duration and included nothing but expressive
behavior, with no follow-up or repeat, is simply not enough to violate Title VII as sexual

harassment.” Champion Int’l, 1995 U.S. Dist LEXIS 11808, at * 26.

In this case, Wiorek’s conduct could not be described as physical, intimate, or forcible.
Wiorek did not physically touch Gonzalez; Wiorek did not sexually proposition Gonzalez, and
Wiorek did not make any crude comments to Gonzalez. In addition, the incident only lasted “a
minute or so.” The infrequent, one-time incident did not take place in an intimate setting;
instead, it occurred in a place where other co-workers could see and hear, Gonzalez’s cubicle.
Finally, Wiorek made no attempt to stop Gonzalez from leaving the cubicle after the incident
occurred. Although the incident was lewd, Wiorek’s conduct was more akin to the expressive
conduct in Champion International. Therefore, the incident, by itself, was not so “severe or

pervasive” to alter the conditions of Gonzalez’s employment.

Ifa victim must work closely with the harassing co-worker, the harassment alters the
condition of the working environment. Quantock, 312 F.3d at 904. “Given that [the supervisor]
made his repeated requests for sex directly to [the plaintiff] and in light of [the supervisor’s]
significant position of authority at the company and the close working quarters within which he
and [the plaintiff] worked, a reasonable jury could find the sexual propositions sufficiently
‘severe,’ as an objective matter, to alter the terms of [the plaintiff's] employment.”

Here, nothing existed in Wiorek’s and Gonzalez’s working relationship to alter the
condition of her working environment after the incident occurred. Wiorek was not Gonzalez’s

8


Minute Order Eocm (0697)

. XG / Gites States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other

ro Aas John W. Darrah ag uO

CASE NUMBER 02 C 7404 DATE 12/2/2003
CASE Gonzalez vs. Neustar
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:

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

(2) Oo Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue__.

(4) Qo Ruling/Hearingon_____setfor___—_att

(5) oOo Status hearing[held/continued to] (set for/re-set for]on___——sset ffor_—— at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__——sset fort.

(7) QO Trial[set for/re-set for]on_____att

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(1) 1 FRCP41(a)(2).

qo) {Other docket entry] For the reasons stated in the attached memorandum opinion and order,

defendant’s motion for summary judgment is granted. Enter Memorandum Opinion and Order. Case
closed. Any pending dates or motions are terminated as moot.

adi) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court

No notices required.

number of notices

Notices mailed by judge’s staff. DEC 0 4 2003
Notified counsel by telephone.

date docketed

wv | Docketing to mail notices.

Vv | Mail AO 450 form,

14YN03 LOIYLSIC 'S'n
yeaa

Copy to judge/magistrate judge.

courtroom 68: Wd €- I9dc0
ME deputy’s
OT Udindints Heelvea in

initials
central Clerk’s Office mailing deputy initials

date mnited notice



However, the plaintiff has the burden of showing that she was treated less favorably than
similarly situated employees who did not engage in the protected activities. This requirement
also means that the plaintiff must show that another employee is similarly situated, “that there is
someone who is directly comparable to her in all material respects.” Patterson v. Avery
Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002) (citations omitted).

Here, Gonzalez failed to meet her burden on this issue for both theories of retaliation.
First, Gonzalez is unable to show that any other employee with the same supervisor, similar job
requirements, experience, education, or qualifications was relocated instead of being terminated.
The only evidence on this point is the affidavit of Steve Cory. Cory, who also made the decision
to terminate Toni Hopkins, viewed both Hopkins’s and Gonzalez’s positions as largely clerical
and not difficult or costly to replace. Gonzalez failed to produce any affidavits, depositions,
answers to interrogatories, and admissions to demonstrate, through specific evidence, that a
genuine issue of material fact exists on this issue. In fact, Gonzalez agreed with NeuStar that
both positions were clerical and not difficult or costly to replace.

Secondly, Gonzalez cannot show that any similarly situated employees remained with the
company during the transition period. Both Gonzalez and the receptionist were terminated; both
had their duties taken over by Kelly Campbell. The only evidence on this point was presented by
NeuStar. Campbell had a wide variety of duties, some of which required her to deal with
financial matters and make discretionary decisions; Gonzalez, though, was only required to pull
data — and not interpret that data — from different SLR reports. Once again, Gonzalez has failed
to produce any affidavits, depositions, answers to interrogatories, and admissions to demonstrate,

through specific evidence, that a genuine issue of material fact exists showing that Campbell, or

IL



Retaliatory Actions

Ina Title VII retaliation action, the plaintiff may either proceed under the direct or
indirect method to overcome a defendant’s motion for summary judgment. Sitar v. Indiana
Dep’t of Transp., -- F.3d -- , 2003 WL 22227972 (7th Cir. 2003) (citing Stone v. City of
Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir. 2002)). Under the indirect method, which is
the only method Gonzalez is using, a plaintiff must first establish a prima facie case of
discrimination. To establish a prima facie case of retaliation:

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.

If the plaintiff establishes a prima facie case, the burden shifts to the defendant to come
forward with a legitimate, non-discriminatory reason for the adverse employment action. At this
point, the burden of production shifts to the defendant; but the burden of persuasion still remains
with the plaintiff. “Once the defendant presents a legitimate, non-invidious reason for the
adverse action, the burden shifts back to the plaintiff to show that the defendant’s reason is
pretextual.”

NeuStar claims that because Cory did not know about the sexual harassment claim, he
could not retaliate against Gonzalez when he terminated her job. However, the decision-maker’s
lack of knowledge about a protected activity only goes to the causal nexus requirement of the
direct method. See, e.g., Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir. 2000)
Therefore, any proof that Cory did not know about Gonzalez’s sexual harassment claim is
irrelevant under the indirect method.

10



Hostile Work Environment
No genuine issue of material fact exists showing that a hostile work environment existed
at NeuStar. Claims for sexual harassment based on a hostile work environment are actionable
under Title VII, Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65, 73 (1986). “To state [a] claim of
sexual harassment based on hostile work environment,” a plaintiff must prove that:
(1) she was subjected to unwelcome sexual advances, requests for sexual favors,
or other verbal or physical conduct of a sexual nature; (2) the conduct was severe

or pervasive enough to create a hostile work environment; (3) the conduct was
directed at her because of her sex; and (4) there is a basis for employer liability.

Quantock v. Shared Mktg. Servs., Inc., 312 F.3d 899, 903 (7th Cir. 2003) (citations omitted).

To prove the “hostile work environment” element, a work environment must be “so
severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive
working environment.” Moreover, the work environment must be both subjectively and
objectively hostile. A number of factors determine whether conduct is objectively hostile,
including: (1) the frequency of the hostile conduct; (2) the severity of the conduct; (3) whether
the conduct is physically threatening or humiliating or is just a mere offensive utterance; and (4)
whether the conduct unreasonably interferes with an employee’s job performance. Quantock,
312 F.3d at 903-04. Although no bright line determines when an action is objectively hostile,
Hostetler v. Quality Dining, Inc., 218 F.3d 798, 807 (7th Cir. 2002) (“Hostetler”), the Supreme
Court has made clear that the “conduct must be extreme” to satisfy the objective prong.
Farragher v, City of Boca Raton, 524 U.S. 775, 788 (1998).

Actual physical contact is generally considered more severe or pervasive. Hostetler, 218

F.3d at 809. In contrast, expressive conduct without any physical touching of the victim is not



standing no more than one or two feet from Gonzalez. Pl.’s 56.1 | A. However, Wiorek never
touched, sexually propositioned, or said anything crude to Gonzalez. Def.’s 56.1 5.

The incident occurred in Gonzalez’s cubicle during normal business hours when other
employees were around. The cubicle is not isolated or private; other people can see into it from
the hallway, and people in nearby cubicles and the hallway can overhear conversations in
Gonzalez’s cubicle. Def.’s 56.16. After the incident, Wiorek did not try to stop Gonzalez
from leaving her cubicle. Def.’s 56.1 47.

Before the incident, Wiorek had never behaved inappropriately in Gonzalez’s presence.
Def.’s 56.1] 8. Gonzalez heard, that on other occasions, Wiorek exposed his penis and sexually
harassed other NeuStar employees. PI.’s 56.1 {{] B-C, G. Gonzalez was told that these
employees reported the incidents to their superiors, but NeuStar did not terminate Wiorek nor
limit his contact with female employees. Pl.’s 56.1 {| D-F, H-I.

After the incident, Gonzalez never saw Wiorek again. Def.’s 56.1 9. Gonzalez worked
from home until Wiorek was suspended by NeuStar; Wiorek was subsequently fired. Def.’s 56.1
49. Gonzalez alleged no other forms of sexual harassment in her EEOC complaint. Def.’s 56.1
4M 10-15.

Ramonita Gonzalez’s Termination

Gonzalez held the position of Technical Support Analyst (“TSA”) at NeuStar. As a TSA,
Gonzalez’s main duty was to run computer programs, including Access database programs, to
download data for monthly reports; Gonzalez regularly “pulled data” for approximately 27-28
different “SLR” reports. Gonzalez did not make any discretionary decisions about how to

interpret that data nor did she create the underlying computer programs on her own. Def.’s 56.1



that a rational jury could return a verdict in the non-moving party’s favor. Celotex, 477 U.S. at
322-27; Anderson v. Liberty Lobby, Inc., 477 U.S, 242, 254-56 (1986); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Waldridge v. American Hoechst Corp.,
24 F.3d 918, 923 (7th Cir. 1994),

Disputed facts are material when they might affect the outcome of the suit. First Ind.
Bank y. Baker, 957 F.2d 506, 507-08 (7th Cir. 1992). When reviewing a motion for summary
judgment, a court must view all inferences to be drawn from the facts in the light most favorable
to the opposing party. Anderson, 477 U.S. at 247-48; Popovits v. Circuit City Stores, Inc., 185
F.3d 726, 731 (7th Cir. 1999). However, a metaphysical doubt will not suffice. Matsushita, 475
U.S. at 586. Ifthe evidence is merely colorable or is not significantly probative or is no more
than a scintilla, summary judgment may be granted. Anderson, 477 U.S. at 249-250.

BACKGROUND

The undisputed facts, for the purposes of this motion, taken from the parties’ Local Rule
56.1(a) & (b) statements of material facts (referred to herein as “Pl.’s 56.1" and “Def’s 56.1") and
exhibits, are as follows.

The Flashing Incident

NeuStar is a corporation with its main office in Sterling, Virginia; but it has operations in
several other states. Until 2002, NeuStar had a data center in Chicago, Illinois, where Gonzalez
worked. Def.’s 56.1 41. Glen Wiorek and Gonzalez were co-workers at NeuStar. Wiorek had
no supervisory authority over Gonzalez. Def.’s 56.1 43.

On January 29, 2002, Wiorek exposed the tip of his penis to Gonzalez. Def.’s 56.192.

The incident lasted “a minute or so.” Def.’s 56.194. At the time of the incident, Wiorek was


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
Dot
RAMONITA GONZALEZ, ) DEC 04 2003
Plaintiff, }
vy. } No: 02 C 7404
NEUSTAR, INC., } Judge John W. Darrah
Defendant. }

MEMORANDUM OPINION AND ORDER

Plaintiff, Ramonita Gonzalez (“Gonzalez”), filed suit against Defendant, NeuStar, Inc.
(“NeuStar”). Gonzalez alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e. Presently before the Court is NeuStar’s Motion for Summary Judgment. For the
reasons that follow, NeuStar’s Motion for Summary Judgment is granted.

LEGAL STANDARD

Summary judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Cincinnati Ins. Co.
y. Flanders Elec. Motor Serv., Inc., 40 F.3d 146, 150 (7th Cir. 1994), “One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims
or defenses... .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Thus, although the
moving party on a motion for summary judgment is responsible for demonstrating to the court
why there is no genuine issue of material fact, the non-moving party must go beyond the face of
the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file to

demonstrate, through specific evidence, that a genuine issue of material fact exists and to show

V


any other employee that NeuStar retained in Chicago during the transition period, was a similarly
situated employee. Therefore, Gonzalez is unable to state a prima facie case of retaliation.

CONCLUSION

For the foregoing reasons, NeuStar’s Motion for Summary rol
ow Yen. Zz, 2003 Sy //

JOHN Vy . DARRAH
CEN District Judge

12