Ellerth v. Burlington Industries, Inc.

• Citation: 102 F.3d 848
• Decision Date: 27 November 1996
• Docket Number: No. 96-1361,96-1361
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 1810, 72 Fair Empl.Prac.Cas. (BNA) 862, 70 Empl. Prac. Dec. P 44,597, 65 USLW 2391 Kimberly B. ELLERTH, Plaintiff-Appellant, v. BURLINGTON INDUSTRIES, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 848

102 F.3d 848

72 Fair Empl.Prac.Cas. (BNA) 1810,

72 Fair Empl.Prac.Cas. (BNA) 862,

70 Empl. Prac. Dec. P 44,597, 65 USLW 2391

Kimberly B. ELLERTH, Plaintiff-Appellant, v. BURLINGTON INDUSTRIES, INC., Defendant-Appellee.

No. 96-1361.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1996.

Decided Nov. 27, 1996 ^*.

Rehearing and Rehearing En Banc Granted, and Decision

Vacated Jan. 28, 1997. ^**

Ernest T. Rossiello, Margaret A. Zuleger, and Elena M. Dimopoulos (argued), Rossiello & Associates, Chicago, IL, for Plaintiff-Appellant.

Jeffrey J. Ward, Keck, Mahin & Cate; James J. Casey (argued), and Mary M. Moore, Ross & Hardies, Chicago, IL, for Defendant-Appellee.

Gwendolyn Young Reams, Susan Starr (argued), Carolyn L. Wheeler, Mary L. Clark, and C. Gregory Stewart, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae.

Before BAUER, ROVNER, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Kimberly Ellerth's lawsuit against Burlington Industries, which claimed that a higher level supervisor sexually harassed her, foundered on the rules for holding a company liable for its supervisory employees' conduct in this area. Expressing some frustration with the inadequacy of the theoretical framework available, the district court concluded that Burlington was not liable under any of the theories of agency law that Ellerth proffered. We agree with the district court that the rules governing supervisory liability in both quid pro quo and hostile work environment sexual harassment cases have been less than clear. Applying the agency principles that the Supreme Court instructed us to use in Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), we conclude that Ellerth presented enough facts to survive summary judgment.

I

In March 1993, Ellerth interviewed for a marketing job at Burlington with Mary Strenk Fitzgerald, a National Accounts Manager in the Mattress Ticking Division. This conversation went well, and Ellerth was invited back for a second interview with Theodore Slowik, the Vice President of Sales and Marketing for the Mattress Ticking Division. From Ellerth's perspective, which we take on this appeal from an adverse grant of summary judgment, the initial encounter with Slowik was disturbing. Among other questions, he asked her if she and her husband were planning on having a family and "practicing" at it, and he stared conspicuously at her breasts and legs. About a week after this interview, Burlington offered and Ellerth accepted the position of Merchandising Assistant in its Chicago office. She reported to Fitzgerald, who in turn reported to Slowik. Fitzgerald and Ellerth were the only two employees in the Chicago office.

Given the management structure, Ellerth saw (and was required to see) Slowik on a regular basis. Although Slowik was based in New York, he came to the Chicago office one or two days every month or two. Occasionally Ellerth saw him in Greensboro, North Carolina, at Burlington's corporate office and manufacturing headquarters, or on training trips to New York and San Francisco. Even when she did not see him in person, her job caused her to speak with him on the telephone about once a week.

Ellerth's encounters with Slowik, both verbal and direct, were characterized by a constant barrage of sexual comments, innuendo, and occasionally more. In the summer of 1993, for example, she traveled to New York for a week of training. Before that trip, Slowik had telephoned Ellerth and spoken suggestively to her. While there, she had several conversations with him, two of which were prolonged. The first of those took place in Slowik's office, during which he told Ellerth a number of off-color, offensive jokes. The second took place over a business lunch that included Ellerth, Slowik, and Angelo Brenna, Burlington's Vice President of International Sales. Slowik again told a number of sexually offensive jokes and rubbed Ellerth's knee under the table. She pulled her leg away when he touched it. When the three left the restaurant, Slowik and the other Vice President walked several feet behind Ellerth, and Slowik commented, "You have got great legs, Kim" and then, to Brenna, "What do you think, Angelo?" When they returned to the office, Ellerth reported to two other Burlington workers that Slowik and Brenna had been loud, obnoxious, rude, and offensive at the lunch.

Slowik continued making sexually offensive comments when Ellerth was with him, both about her and about other women. After a business dinner in Greensboro, Slowik invited Ellerth to join him at the lounge of the hotel where they were both staying, and she felt obliged to accept. At the lounge, Slowik commented that the female band members had nice breasts, nice legs, and nice, skimpy outfits. Looking at Ellerth's breasts, he then said, "You are a little lacking in that area, aren't you Kim?" When she did not respond, Slowik told her that she "ought to loosen up," and stared at her chest and legs. Upon leaving the lounge, Slowik's remark was more threatening: "You know, Kim, I could make your job very hard or very easy at Burlington." Ellerth interpreted this to mean that she would have to have sex with Slowik to succeed at the company.

After the Greensboro trip, Slowik began telephoning Ellerth more frequently. The calls, though brief, normally included sexually harassing comments. Slowik would talk about her body (particularly her legs) and would ask about her "practice" to have a family. On several occasions, he refused to give Ellerth special permission to do something for a customer until she described her clothing to him. He suggested that her job would be much easier if she wore shorter skirts. Ellerth testified that "every time I was on the phone with him I ended up most--in tears." The same kind of conduct continued when he saw her personally. In the fall of 1993, on a visit to the Chicago office, Slowik encountered Ellerth on the floor where she was folding samples. In front of another employee, he said, "on your knees again, Kim," implying (falsely) that she would "again" perform fellatio.

Ellerth's resistance to Slowik's overtures did not deter him. In February and March 1994, Ellerth interviewed with Patrick Lawrence (who also reported to Slowik) and Slowik for a promotion to the position of Sales Representative for the Midwest territory. Slowik, who had final decisionmaking responsibility for the promotion, rubbed her knee with his hand during the interview for the promotion while asking her whether the frequent travel associated with the new position would make her husband miss her. Patrick Crosson, the person who had held that position previously, told Ellerth before her interview that Slowik had said he did not want to promote her because she was "arrogant." Lawrence reported the same thing. When Ellerth confronted Slowik about this, he admitted calling her arrogant and said, "I have my hesitations having you in this position." Ellerth asked, "[I]s it because I'm not loose enough for you, Ted?", and Slowik replied in the affirmative. Some two weeks later, Slowik called Ellerth to tell her she had received the promotion, but he added a sexually inappropriate comment to her at the end of the conversation that made her start crying.

In addition to Ellerth's complaints about Slowik to the workers in the New York office, and to Vice President Brenna's direct observation of Slowik's behavior, Ellerth also complained in early 1994 to Donna Thibideau, Burlington's Customer Service Manager, that Slowik was sexually harassing her. Thibideau (who held a higher level position than Ellerth) told her that Slowik also may have harassed Ann Pillow, another Burlington employee. Ellerth also complained to Sherry Hester, a Customer Service Representative to Brett Schneider, a Sales Representative, and to several customers. On at least one occasion between her hire date and the fall of 1993 she complained directly to Slowik about his behavior.

In May 1994, Ellerth and her new supervisor, Lawrence, met to discuss ways in which they could improve office procedures. Lawrence accepted some of Ellerth's suggestions; he made no mention of any customer complaints about her performance, including about her returning telephone calls. Shortly thereafter, Lawrence and Thibideau received one or two such complaints, which prompted a letter on May 22, 1994, from Lawrence to Ellerth about her failure to return calls from two customers and three Burlington employees. The letter referred to a May 18, 1994, conversation between Lawrence and Ellerth, which Ellerth contends did not take place.

On May 31, 1994, Ellerth left a message on Lawrence's answering machine telling him that she was quitting, and she faxed him a letter to the same effect. The original letter that she wrote included references to Slowik's harassment of her: "What I did not want to mention to you was the fact that Ted had harassed me in the past and I simply ignored him to save my job;" "[n]eedless to say these incidents could be seen as sexual harassment;" and "[w]hat a shame that one man can have such an influence." At the advice of her husband, and knowing that Slowik was Lawrence's supervisor, she covered up those sentences with correction fluid before sending the fax, which she transmitted in a form that showed the blank spaces from the redaction. Three weeks later, she sent Lawrence a more complete explanation, in a letter dated June 21 that said in part:

Before I was hired, you and I spoke about the reasons why Ted didn't feel comfortable around me. I told you he had said and done some sexually inappropriate things to me in the past. What I didn't tell you was that he had on two occasions, patted my rear and every time he saw me looked me up and down like a piece of meat....

Although Ellerth knew that Burlington had a policy against sexual harassment, she was unaware of how vigorously it...