123 F.3d 490 (7th Cir. 1996), 95-3128, Jansen v. Packaging Corp. of America

Docket Nº:95-3128, 96-1361.
Citation:123 F.3d 490
Party Name:Alice JANSEN, Plaintiff-Appellant, v. PACKAGING CORPORATION OF AMERICA, Defendant-Appellee. Kimberly B. ELLERTH, Plaintiff-Appellant, v. BURLINGTON INDUSTRIES, INC., Defendant-Appellee.
Case Date:November 27, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 490

123 F.3d 490 (7th Cir. 1996)

Alice JANSEN, Plaintiff-Appellant,

v.

PACKAGING CORPORATION OF AMERICA, Defendant-Appellee.

Kimberly B. ELLERTH, Plaintiff-Appellant,

v.

BURLINGTON INDUSTRIES, INC., Defendant-Appellee.

Nos. 95-3128, 96-1361.

United States Court of Appeals, Seventh Circuit

November 27, 1996

Page 491

[Copyrighted Material Omitted]

Argued May 15, 1996 in 95-3128.

Argued Sept. 9, 1996 in 96-1361.

in 96-1361.

Reargued En Banc Feb. 25, 1997.

Decided Aug. 12, 1997.

Page 492

H. Candace Gorman (argued), Gregory X. Gorman, Gorman & Gorman, Chicago, IL, for plaintiff-appellant Alice Jansen.

Kari J. Sperstad, Neil G. Wolf, Ross & Hardies, James M. Gecker (argued), Julie L. Helenbrook, Katten, Muchin & Zavis, Chicago, IL, for defendant-appellee Packaging Corporation of America.

Cynthia A. Wilson, Chicago Lawyers' Committee For Civil Rights Under Law, Carol L. Gloor, Chicago, IL, for amicus curiae Chicago Now.

Cynthia A. Wilson, Chicago Lawyers' Committee For Civil Rights Under Law, Carol L. Gloor, Chicago, IL, for amicus curiae Chicago Women in Trade.

Cynthia A. Wilson, Chicago Lawyers' Committee For Civil Rights Under Law, Carol L. Gloor, Chicago, IL, for amicus curiae Women Employed.

Carolyn L. Wheeler (argued), Gail S. Coleman, Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for amicus curiae Equal Employment Opportunity Commission.

Douglas S. McDowell, Ann Elizabeth Reesman, Ellen Duffy McKay, McGuiness & Williams, Washington, DC, for amicus curiae Equal Employment Opportunity Commission in No. 95-3128.

Ernest T. Rossiello, Margaret A. Zuleger, Elena M. Dimopoulos (argued), Rossiello & Associates, Chicago, IL for plaintiff-appellant Kimberly B. Ellerth.

Jeffrey J. Ward, Keck, Mahin & Cate, James J. Casey (argued), Mary M. Moore, Ross & Hardies, Chicago, IL, for defendant-appellee Burlington Industries, Inc.

Gwendolyn Young Reams, Carolyn L. Wheeler, Susan Starr (argued), Mary L. Clark, C. Gregory Stewart, Equal Employment Opportunity Commission, Office of General Counsel, Washington, DC, for amicus curiae Equal Employment Opportunity Commission in No. 96-1361.

Before POSNER, Chief Judge, and CUMMINGS, BAUER, [*] CUDAHY, [**]COFFEY, FLAUM, EASTERBROOK, MANION, KANNE, ROVNER, DIANE P. WOOD, [***] and EVANS, Circuit Judges.

Per Curiam.

We have consolidated for decision two appeals reargued en banc on the same day. Although the makeup of the en banc court is slightly different in the two cases, [****] the similarity of the issues has persuaded us to treat the cases together. Unfortunately, a majority of the judges has not converged upon a single rationale for the resolution of

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all the issues in these cases. The purpose of this per curiam opinion is to describe the cases briefly, to announce the outcomes and indicate the basic lines of agreement and disagreement, to articulate the court's unanimous view with regard to the disposition of the state law issues, and to refer the reader to the separate, signed opinions that follow.

Both cases primarily charge sexual harassment of a female employee by a supervisory employee in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. And in both the plaintiff is appealing from a grant of summary judgment.

In Jansen, with which we begin, the plaintiff has additional claims--of retaliation in violation of Title VII and of intentional infliction of emotional distress in violation of the common law of Illinois. The entire court believes that the district judge was right to grant summary judgment for the defendant, Packaging Corporation of America, on both these claims. Some of the alleged acts of retaliation are outside the scope of Jansen's EEOC charge and are therefore waived. As for the other acts, PCA presented noninvidious reasons for them (for example, that Jansen was assigned a lunch hour--one of the alleged retaliatory acts--in order to assure that the phone in her department would be manned at all times). Since Jansen presented neither evidence that these reasons were mere pretexts nor any other evidence from which retaliatory intent could be inferred, the company was entitled to summary judgment. Dunning v. Simmons Airlines, Inc., 62 F.3d 863, 868-69 (7th Cir.1995). As for Jansen's claim of intentional infliction of emotional distress, it is preempted by the Illinois Human Rights Act, which confines claims of "civil rights violation" under Illinois law to proceedings under the Act. 775 ILCS 5/8-111(C). Sexual harassment is one of the civil rights violations specified in the Act, 775 ILCS 5/2-102(D), and Illinois' highest court has held therefore that common law tort claims that depend on allegations of sexual harassment may be brought only under the Act. Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507, 203 Ill.Dec. 454, 457-59, 639 N.E.2d 1273, 1276-78 (1994). Jansen's common law claim of infliction of emotional distress is supported by the identical factual allegations of her Title VII claims and is therefore preempted.

Jansen's principal claim is of sexual harassment in violation of Title VII. She was hired by PCA as a secretary to Al Antoni, the manager of the Tooling Services Department of PCA's Wheeling, Illinois plant. She has presented evidence that he subjected her to undesired and offensive sexual advances. He once intimated to her that he would hold up her raise if she didn't have sex with him. He held it up for a time, but eventually she did receive it and it was made retroactive. The incident with the raise is the core of her claim that she was subjected to what is known in the case law of sexual harassment under Title VII as "quid pro quo" harassment. In addition, she complains that Antoni's repeated advances created a hostile working environment. Reargument in Jansen was granted in advance of the release of the panel opinion.

Ellerth was employed in marketing in the Chicago office of the mattress-fabric division of Burlington Industries. Theodore Slowik, the division's vice president for sales and marketing, was not Ellerth's immediate supervisor, and was based in New York; but he was her supervisor's supervisor, and as such saw her in the course of business on a regular basis. He made sexual advances to her over a period of a year or so and from time to time intimated that she would not be promoted or otherwise do well at Burlington Industries unless she submitted to his advances. Ellerth argues that Slowik's conduct placed Burlington Industries in violation of Title VII on both a quid pro quo and a hostile-environment theory.

With regard to Jansen's claim of hostile-environment harassment, the entire court agrees that an employer who is negligent in the hiring, supervision, monitoring, or retention of the plaintiff's supervisor (Antoni) is liable for the supervisor's sexual harassment and that the plaintiff has submitted enough evidence of PCA's negligence to create a triable issue, so that summary judgment should not have been granted to PCA. All the judges with the exception of Judges

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Easterbrook, Rovner, and Wood believe that negligence is the only proper standard of employer liability in cases of hostile-environment sexual harassment even if as here the harasser was a supervisor rather than a coworker of the plaintiff. The view of these judges is set forth in Judge Flaum's opinion, which is joined by Judges Cummings, Bauer (as to No. 96-1361 (Ellerth)), Cudahy (as to No. 95-3128 (Jansen)) (with the reservations indicated in Judge Cudahy's separate opinion), Kanne (with the reservations indicated in Judge Kanne's separate opinion), and Evans; in Chief Judge Posner's opinion, which is joined by Judge Manion; in Judge Manion's opinion, which is joined by Chief Judge Posner; and in Judge Coffey's opinion. Judges Easterbrook, Rovner, and Wood, as explained in Judge Easterbrook's and Judge Wood's opinions, believe that the proper standard of employer liability in all cases of sexual harassment by a supervisor is respondeat superior, provided, however, that the harassment was committed by the supervisor in the course of exercising his actual or apparent supervisory responsibilities, was foreseeable, and subjects the employer to liability under the principles of the applicable state law. The view that the proper standard of care in cases of a supervisor's creation of a hostile working environment is negligence is thus the law of the circuit, as it is the majority's view.

Judge Flaum's opinion concludes that Jansen has a viable quid pro quo claim, as do Judges Easterbrook, Rovner, and Wood, though their route to this conclusion is different, as they do not believe that there should be any different standard for an employer's liability for supervisors' harassment depending on whether it is hostile-environment harassment or quid pro quo harassment. Chief Judge Posner and Judges Coffey and Manion disagree that Jansen has a viable quid pro quo claim, Chief Judge Posner and Judge Manion because they believe that strict liability for quid pro quo harassment should be limited to "company acts" (such as firing or demoting), as distinct from mere threats, and Judge Coffey because he rejects strict liability in quid pro quo cases and also because he deems Jansen to have waived her quid pro quo claim.

In Ellerth's case, the panel decision, reversing the grant of summary judgment, was issued, 102 F.3d 848 (7th Cir.1996), but, as is our practice, was vacated when rehearing en banc was granted. Judge Wood's opinion for the panel had held that Ellerth had presented enough evidence both of quid pro quo harassment, and of hostile environment harassment by a supervisory employee, to create triable issues, so that...

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