Dey v. Colt Const. & Development Co.

Decision Date26 August 1994
Docket NumberNo. 93-2053,93-2053
Parties65 Fair Empl.Prac.Cas. (BNA) 523, 2 Wage & Hour Cas.2d (BNA) 341 Anne DEY, Plaintiff-Appellant, v. COLT CONSTRUCTION & DEVELOPMENT COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Solomon I. Hirsh, Chicago, IL (argued), for plaintiff-appellant.

Arthur L. Klein (argued), Paul E. Starkman, Elliott G. Smith, Arnstein & Lehr, Katherine A. Williams, Lamet, Kanwit & Davis, Chicago, IL, for defendant-appellee.

Before WOOD, Jr., ESCHBACH, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Anne Dey charges that her former employer, Colt Construction and Development Company ("Colt"), violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e-2(a)(1) & 2000e-3(a), when its vice president and general counsel sexually harassed her on the job and when its president then terminated her employment only one month after she first complained of that harassment. Dey also maintains that Colt violated the Equal Pay Act, 29 U.S.C. Sec. 206(d)(1), when it paid her male successors more than she had been paid for similar work. The district court granted Colt's motion for summary judgment on all of Dey's claims, and she now appeals. For the reasons that follow, we reverse and remand for a trial on the Title VII claims but affirm the grant of summary judgment on Dey's claim under the Equal Pay Act.

I. BACKGROUND

Dey began working for Colt, a building and construction concern located in Skokie, Illinois, on April 19, 1982. She was hired as the company's bookkeeper, but she was thereafter given the title of "controller." She was responsible, inter alia, for maintaining Colt's payroll, its payables and receivables, for making disbursements to subcontractors and construction material vendors, for paying office expenses, documenting project costs, and preparing affidavits, waivers of mechanic's liens, union reports, and reports for the Department of Housing and Urban Development. Dey also prepared Colt's payroll tax returns, although its income tax returns and its year-end financial statements were prepared by an outside accountant based on data and schedules compiled by Dey.

The office in which Dey worked primarily housed Colt's management personnel and not its field staff. In addition to Dey, the office included Colt's president and owner, Robert Irsay; its executive vice president, James Ferguson; its vice president and general counsel, Michael Chernoff; one or two salespeople and estimators; and two or three support personnel. In September 1984, Dudley Sullivan joined the office as president of Colt Realty and Development Company ("Colt Realty"), a separate real estate development company also owned by Irsay. Dey was supervised by Ferguson, but she occasionally worked with Chernoff on collection, insurance, and other special matters. She also received some projects directly from Irsay. Dey was aware throughout the period of her employment with Colt that Irsay had final decision-making authority on all company matters.

Dey charges that near the end of 1982 or early in 1983, Chernoff began subjecting her to almost daily comments, gestures, and innuendo that she considered sexually suggestive and harassing. Although she worked directly with Chernoff only on occasion, she had limited, daily contact with him whenever he was in town because of the size of Colt's office. Dey is unable to remember the specifics of much of the alleged harassment, but she recounts in some detail the following five incidents: (1) in talking with Dey sometime in either 1983 or 1984, Chernoff referred to a female attorney with whom he was then working on a Colt project as a "flat-chested cunt"; (2) when Dey returned from a Phoenix vacation in January 1983, Chernoff suggested she had not gotten a tan because she had spent the week on her back in bed; (3) when Dey and Chernoff were commenting one day between November 1982 and September 1983 on the strong body odor of Chernoff's secretary, Chernoff stated that he "would eat [Dey] no matter how [she] smelled"; (4) in March or April 1985, after more than two years of alleged harassment, Dey and Chernoff were riding alone on an elevator from Colt's fourth-floor offices to the basement parking garage when Chernoff asked Dey to hold some papers for him; he then unzipped his slacks, whereupon Dey turned her back until the elevator reached the basement; Dey heard Chernoff unzip and then zip his slacks, although Chernoff did not say anything and did not touch Dey during this incident; she later indicated that she had felt trapped and "very afraid"; 1 and (5) in September or October 1985, Chernoff said to someone on the telephone that "there is a girl in my office going down on me" as Dey leaned down to put some documents on Chernoff's floor. Dey maintains that these five incidents stand out in her memory as the most blatant but that Chernoff made similar harassing comments on almost a daily basis. Although Dey can describe the circumstances of some further incidents, she is unable to recall specifically what Chernoff may have said or done. There was no physical component to the alleged harassment, however, as Dey concedes that neither Chernoff nor anyone else at Colt ever touched her in a sexually suggestive manner or intimated that sex was a quid pro quo for continued employment or advancement with the company.

Subsequent to the zipper incident on the elevator, Dey described Chernoff's behavior to a male friend, who told Dey that there were laws to protect women against this "sort of thing" and that his own company would not tolerate similar conduct from one of its employees. Dey apparently was unaware prior to this conversation that she had any legal rights or recourse. She had instead simply tolerated Chernoff's conduct so as not to jeopardize her job. According to Dey, Colt had no formal rules or procedures relating to sexual harassment complaints.

Shortly after the conversation with her friend, Dey reported Chernoff's conduct to her supervisor Ferguson. She indicated that she was uncomfortable and embarrassed by Chernoff's comments and that she intended to start a log, recording those incidents she considered particularly offensive. Ferguson later reported that Dey appeared upset during this conversation. After talking to Ferguson, Dey complained to Chernoff directly, indicating that his comments and other conduct made her "very uncomfortable," that she intended to keep a log of his conduct, and that she hoped her objections would discourage any similar behavior in the future. 2 Chernoff denies that this conversation ever took place. Dey reports, however, that after her complaints to Ferguson and Chernoff, the conduct subsided for a time before resuming, albeit less frequently and less blatantly, a month or two later. Indeed, it was months after Dey had complained that Chernoff made the "girl in my office going down on me" comment. Dey had one further conversation with Ferguson about the alleged harassment in April 1985, in which she asked whether Ferguson had made any progress on her complaint. Ferguson assured Dey that he was working on it. Dey never approached Irsay directly with her complaints, however, and she concedes that she does not know whether Ferguson or Chernoff ever mentioned the problem to Irsay.

Dey maintains that Chernoff's conduct upset and embarrassed her and made her feel uncomfortable in the office, although she was still able to fulfill her job responsibilities in a timely fashion. She indicates that Chernoff's comments affected her attitude and at times caused her simply to walk out of his office. She states that she just wanted the comments to stop. Dey never consulted a physician for any psychological problems resulting from Chernoff's conduct, however.

Although Chernoff's conduct caused her considerable discomfort, Dey considered everyone in the office, including Chernoff, to be her friend, and she characterized the office environment as professional, with the exception of Chernoff's consistent sexual commentary. She did not socialize with Chernoff outside the office, although she sometimes had lunch with him and attended office luncheons and other office social functions where Chernoff was present. Dey did on two occasions receive personal, legal advice from Chernoff during office hours--once in relation to a personal injury lawsuit in which she had sued the manufacturer of a defective birth control device, and once when Chernoff offered to review a proposed contract for the purchase of an automobile after Dey had considered but ultimately declined to purchase Chernoff's own automobile. Finally, Dey once requested Chernoff's assistance when a woman appeared at the office demanding to speak with Dey about her alleged relationship with the woman's husband. When the receptionist could not persuade the woman to leave, Dey called upon Chernoff because she thought the woman might have a gun, and Chernoff was able to convince the woman to leave. 3

Toward the end of April 1985, Ferguson met with Dey for her annual salary review and told her that her weekly salary would be raised from $475 to $500. This $25 per week raise was consistent with what she had received in prior years. Dey thought she was entitled to a larger raise to account for her growing responsibilities, and she subsequently took the matter up with Irsay, who ultimately agreed to a $60 per week raise. Irsay now explains that this raise was not performance-based and that he had agreed to it only to placate Dey because he was not yet in a position to replace her.

Less than two weeks later, Irsay held a closed-door meeting with Chernoff and Sullivan in which they agreed that Dey would be terminated. Irsay maintains that he made the decision independently, that he merely asked Chernoff and Sullivan for...

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