Scott v. Sears, Roebuck & Co.

Citation798 F.2d 210
Decision Date12 August 1986
Docket NumberNo. 85-1722,85-1722
Parties41 Fair Empl.Prac.Cas. 805, 41 Empl. Prac. Dec. P 36,439, 1 Indiv.Empl.Rts.Cas. 609 Maxine SCOTT, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Steven B. Varick, McBride Baker & Coles, Chicago, Ill., for plaintiff-appellant.

Reed R. Kathrein, Arnstein, Gluck, Lehr, Barron & Mulligan, Chicago, Ill., for defendant-appellee.

Before WOOD, Jr., Circuit Judge, and ESCHBACH, Senior Circuit Judge, and CAMPBELL, Senior District Judge. *

WILLIAM J. CAMPBELL, Senior District Judge.

Plaintiff-appellant Maxine Scott appeals the district court's dismissal of her Title VII employment discrimination action at the summary judgment stage (see 605 F.Supp. 1047 (1985)). Scott was employed by defendant-appellee Sears, Roebuck & Co. in 1980. She was a participant in a program Sears was involved in with the Chicago Alliance of Business & Employment Training, Inc. The program's goal was to train women in nontraditional areas of employment. It was subsidized with federal Comprehensive Employment & Training Act (CETA) funds. Scott's entire action against Sears was dismissed, yet on appeal she focuses on the dismissal of three of the charges in her complaint in particular. Two of these charges are that she was subjected to unlawful sexual harassment and that she was wrongfully discharged due to her gender, both in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. Scott claims her allegations surrounding these two charges contain genuine issues of material fact and were dismissed prematurely. The third charge that Scott focuses upon is that her termination violated an implied covenant of good faith and fair dealing under Illinois contract law. She believes the district court incorrectly dismissed this claim as a matter of Illinois law. For the reasons set forth below, we see no error in the district court's rulings and therefore affirm.

The facts advanced by Scott in the fact section of her brief concerning her sexual harassment claim are as follows. Scott was training to become an automobile mechanic at Sears. She was placed at Sears' Orland Park automotive department after completing a required 12-week training course. A senior mechanic named Eddie Gadberry was assigned to give her on-the-job training in fixing brakes. Gadberry's superior was shop manager John Sanders. Sanders reported to department manager Ernest McDowell. Scott claims she was repeatedly sexually harassed by Gadberry, creating a "hostile environment" actionable under Title VII. She claims Gadberry repeatedly propositioned her, would wink at her and also suggested he give her a rub-down. She additionally alleges that when she asked for advice or assistance, Gadberry would often reply, "what will I get for it?" Scott alleges that a brake mechanic named Dave Frazier slapped her on the buttocks and that mechanic Al Williams The district court adds the following facts. Scott admitted in her deposition Gadberry never explicitly asked her to have sex and never touched her. She claimed he was "basically nice" and considered him her friend. Gadberry's propositioning apparently amounted to requests to take her to a mall restaurant, the "Green Grasshopper," for drinks after work. Despite the fact Gadberry was known to respond "what will I get for it" when Scott asked him for advice, there is no evidence he ever withheld advice from Scott due to her refusal to "give something" in return. Concerning the conduct of other mechanics, there is no indication that any offensive conduct on their part was repeated or relentless. Scott equates the various mechanics' requests to take her out as requests for sex. She believes the mechanics' "suggestive attitudes" created a hostile working environment within the meaning of Title VII sex discrimination law. Yet Scott admits she never complained to Sanders, McDowell or any other supervisory personnel about any of the above.

once told her he knew she must moan and groan while having sex. This is the extent of facts unearthed by Scott in her brief concerning her sexual harassment claim.

As for her gender-based discharge claim, the discussion centers around Scott's productivity and a statement made at the time of her dismissal. Scott claims McDowell and Sanders told her she was not required to meet any productivity quotas but that her goal should be to accomplish two to two and one-half brake jobs per day. After approximately nine months, she had reached a two-brake-job per day level. While Scott admits more experienced mechanics like Gadberry could perform three brake jobs per day, she contends there was insufficient work to keep everyone busy at Sears' Orland Park location. She argues her low productivity was due in part to the fact that she was often assigned to do tire and battery work. Scott claims that when McDowell dismissed her (and the only other woman mechanic named Otis) in July 1981 it was due to her sex. This is evidenced, she claims, by the fact that at the time of her dismissal McDowell told her he "didn't want to pay a woman $7 an hour when he could get a man to do three brake jobs for that." (Scott Dep. 59)

In addressing Scott's gender-based discharge claim, the district court noted Scott was warned three months prior to her dismissal that her productivity was unsatisfactory. The court also noted the absence of any evidence that Gadberry had anything to do with the alleged wrongful termination. It is undisputed that the one time Sanders asked Gadberry to rate her performance Gadberry gave her a favorable rating. Also important is the fact that no mechanics were hired to replace Scott or Ms. Otis. All parties admit business at Sears' Orland Park automotive department was slow.

SEXUAL HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM

We start by reviewing a few general principles of Title VII sex discrimination law recently enunciated by the United States Supreme Court in Meritor Savings Bank v. Vinson, --- U.S. ----, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). 1 The Court has "Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a guantlet (sic) of sexual abuse in return for the privilege of being allowed to work and make a living can be as demanding and disconcerting as the harshest of racial epithets."

                established that sexual harassment can become so pervasive and debilitating to an employee that its effect can create a "hostile environment" offensive or violative of Title VII.  Such severe harassment becomes discriminatory because it deprives the victim (usually female) of the right to participate in the work place on equal footing with others similarly situated.  The Court emphasized, "... the language of Title VII is not limited to 'economic' or 'tangible' discrimination.  The phrase (in Title VII) 'terms, conditions, or privileges of employment' evinces a Congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment."    Id.  (Parentheses added.)    See Los Angeles Department of Water and Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 1375 n. 13, 55 L.Ed.2d 657 (1978);  quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir.1971).  The Court cited with approval the Equal Employment Opportunity Commission's (EEOC) expansive definition of "sexual harassment," codified at 29 CFR Sec. 1604.11(a), et seq.  (1985).  Sexual harassment is defined there as, "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ..." where "... (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."    After Meritor there is no mistaking the acceptability of the EEOC definition (and verbiage) found at Sec. 1604.11(a).  The Court noted the "hostile environment" principle has been used in the past to identify unconstitutional racial (see Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (8th Cir.1977)), and religious (see Compston v. Borden, Inc., 424 F.Supp. 157 (S.D.Ohio,1976)) discrimination as well as discrimination based on national origin (see Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87 (8th Cir.1977)).  The Court stated, "Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not likewise be prohibited."    (Emphasis supplied.)    Citing Henson v. Dundee, 682 F.2d 897, 902 (11th Cir.1982), the Court concluded
                

Id., --- U.S. at ----, 106 S.Ct. at 2406.

Although the existence of a hostile environment claim due to sexual harassment has been established under Title VII, the threshold issue in individual cases like the one at bar is whether the instances of harassment alleged by the plaintiff rise to a level of "hostility" offensive enough to be considered actionable. In Meritor the Supreme Court, citing Henson, stated, "For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment'." Meritor, --- U.S. at ----, 106 S.Ct. at 2406. (Parentheses supplied.) 2 Hence, the question becomes did the demeaning conduct and sexual stereotyping cause such anxiety and debilitation to the plaintiff that working conditions were "poisoned" within the meaning of Title VII? See Bundy v. Jackson, 641 F.2d 934, 944 (D.C.Cir.1981).

In the case at bar, we agree with the district court that the harassment plaintiff was subjected to (even as advanced by plaintiff) was not so severe, debilitating or We note,...

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