Ellerth v. Burlington Industries, Inc.

• Decision Date: 19 January 1996
• Docket Number: No. 95 C 839.,95 C 839.
• Parties: Kimberly B. ELLERTH, Plaintiff, v. BURLINGTON INDUSTRIES, INC., Defendant.
• Court: U.S. District Court — Northern District of Illinois

912 F. Supp. 1101

Kimberly B. ELLERTH, Plaintiff, v. BURLINGTON INDUSTRIES, INC., Defendant.

No. 95 C 839.

United States District Court, N.D. Illinois, Eastern Division.

January 19, 1996.

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Ernest Thomas Rossiello, Margaret Ann Zuleger, Rossiello & Associates, Chicago, IL, for plaintiff.

James J. Casey, Jeffrey Jerome Ward, Keck, Mahin & Cate, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff Kimberly B. Ellerth ("Ellerth") sues defendant Burlington Industries, Inc. ("Burlington") for sex discrimination and constructive discharge under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Ellerth alleges that while employed at Burlington she was inappropriately touched and sexually harassed by her superior, Theodore Slowik, subjecting her to a hostile work environment in violation of Title VII's prohibition against discrimination on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Ellerth also contends that Slowik's harassment of her resulted in her constructive discharge. Burlington's motion for summary judgment is presently before the Court. After careful review, the Court finds that there is no genuine issue of material fact and judgment should be entered for Burlington on both counts of Ellerth's complaint as a matter of law.

RELEVANT FACTS

The following undisputed facts are gleaned from the parties' respective Local Rule 12 statements of material facts and accompanying exhibits.¹ Burlington is a manufacturer of textiles and home furnishings which employs over 22,000 people and operates more than 50 plants and offices around the United States, including a Chicago office. (Def.'s Facts ¶¶ 2, 5). Ellerth first interviewed with Burlington in mid-March 1993, at which time she was interviewed by Mary Strenk Fitzgerald ("Fitzgerald"). Fitzgerald was a national accounts manager in Burlington's Mattress Fabric (or "Ticking") division. Shortly after the Fitzgerald interview, Ellerth had a second interview, this time meeting with Theodore Slowik ("Slowik"), who holds the position of vice president of sales and marketing for Burlington's House Mattress Ticking division and who works out of Burlington's New York office. About one week later, Fitzgerald called Ellerth to offer her the position of merchandising assistant in the Chicago office. Ellerth accepted.

As a merchandising assistant, Ellerth assisted Fitzgerald in her day to day activities. She also spoke with Slowik by phone approximately once per week. Additionally, Ellerth's position required occasional travel, generally for training-related purposes. Ellerth's immediate supervisor while she held this position was Fitzgerald. (Id. ¶ 11). Fitzgerald reported directly to Slowik. (Pl.'s Facts ¶ 11).

In February and March of 1994, following interviews with Patrick Lawrence and Slowik, Ellerth received a promotion to the position of sales representative for the Ticking Division's Midwest territory. (Def.'s Facts ¶ 12). Lawrence became Ellerth's immediate supervisor after that promotion. In turn, Lawrence reported to Slowik.

Throughout her employment at Burlington, Ellerth saw Slowik when he came to Chicago, on average, for a day or two every month or two. (Id. ¶ 17). In addition, Ellerth states that she saw Slowik when she traveled to New York, North Carolina and San Francisco for training, and that she spoke with Slowik approximately once a week. (Pl.Dep. at 49, 58, 93-94, 131, 215-216).

Ellerth claims that Slowik's harassment of her began as early as her preemployment interview with him. Ellerth contends that during that interview, Slowik asked her if she was married, if she planned on having a family, and if she was "practicing" to have a family. Ellerth further alleges that Slowik stared at her in a sexual way such as staring at her chest for prolonged periods of time, and staring at her legs. Ellerth contends that the stares were constant throughout the entire interview and that she felt "humiliated" during the interview. (Def.'s Facts ¶ 18). Notwithstanding this experience, after the interview, Ellerth sent a follow-up letter to Fitzgerald in which she wrote, "I appreciated the chance to meet with Mr. Slowik before he returned to New York. The insight that he gave me into the position only provided me with more incentive to take the job he offered."

The next time Ellerth saw Slowik—the summer of 1993, when she travelled to New York for training—the harassment allegedly continued. (Def.'s Facts ¶ 20). Ellerth was in New York for approximately five days. Although she could not recall the exact number of times she saw Slowik in New York, Ellerth testified that she had more than five conversations, most lasting about five minutes, but two that were longer (about an hour) in duration. The first of these two longer conversations took place in Slowik's office. Slowik allegedly told one off-colored joke at the end of that conversation. Ellerth does not remember the content of the joke. (Id. ¶¶ 22, 23; Ellerth Dep. at 57-66). Ellerth testified that there were "around four" incidents during her training trip to New York in which Slowik told off-colored, offensive jokes. (Id. ¶ 23; Ellerth Dep. at 63, 65).

The second extended conversation Ellerth had with Slowik in New York took place during a lunch meeting at a restaurant near Burlington's New York office in which Angelo Brenna, Burlington's vice president of international sales, was also present. The lunch lasted approximately one to one and a half hours during which time Ellerth claims Slowik told "well over ten," offensive jokes of a sexual nature. Although she could not recall the exact number of offensive jokes, Ellerth testified that they were frequent and constant. (Def.'s Facts ¶ 24; Ellerth Dep. at 70-71). Ellerth also testified that during one of these jokes, Slowik reached over and rubbed her knee under the table. Ellerth pulled her leg away and said nothing to Slowik or Brenna; Ellerth assumed Brenna had not seen the rubbing. (Def.'s Facts ¶ 24; Ellerth Dep. at 75-76). While walking back to the Burlington office after lunch, Ellerth was walking about three or four feet in front of Slowik and Brenna when Slowik allegedly commented, "you have got great legs, Kim. What do you think, Angelo?" (Id. ¶ 25). Ellerth testified that, after that remark was made, she turned and looked at Slowik who was staring at her legs. (Ellerth Dep. at 81). Ellerth testified that when she returned to the office after lunch, she told two women, one named Marilyn and the other named Laura Peffal, that Slowik and Brenna had been "very loud and obnoxious and rude and very offensive at lunch." (Pl.Dep. at 82-83). Ellerth had no other interactions with Slowik in New York.

Following the New York trip, Ellerth has no specific recollection of seeing or speaking with Slowik until approximately one month later when she traveled to Greensboro, North Carolina for additional training.² Ellerth was in North Carolina for one work week (i.e., Monday through Friday). (Def.'s Facts ¶ 27). Ellerth first saw Slowik in North Carolina about three days after she arrived, when she had dinner with Slowik, a sales representative named Dan, and Dan's wife. Ellerth states that Slowik was loud and obnoxious during dinner and gave the waitress a hard time. Ellerth's deposition testimony regarding the nature of Slowik's offensive conduct vis-a-vis the waitress is indefinite at best. She testified that she did not recall how Slowik was giving the waitress a hard time. When first asked if he was giving the waitress a hard time "in a sexual way" or "making offensive sexual comments to her," Ellerth stated that she could not recall. (Ellerth Dep. at 103). Upon further inquiry, Ellerth responded that Slowik's comments were "probably" about the waitress' appearance because that is what Ellerth would find offensive. (Id.; see also id. at 117 ("I recall that I was very offended with what he said to the waitress, and I know the only way that I would be offended or embarrassed is if there was a situation where he was talking sexually offensive")).

Upon returning to the hotel after dinner, Slowik invited Ellerth to accompany him to the hotel lounge. Ellerth accepted. Ellerth testified that, while in the lounge, Slowik commented about the female band members stating that they had nice breasts, nice legs and nice, skimpy outfits. (Def.'s Facts ¶ 29). Ellerth further states that, regarding breasts, Slowik asked, "you are a little lacking in that area, aren't you Kim?" Ellerth did not reply to Slowik's comments and she claims that Slowik told her that she "ought to loosen up." (Id.). At the bar, Slowik allegedly engaged in prolonged looks at Ellerth's breasts and legs. Upon leaving the bar, Ellerth claims that Slowik stated, "You know, Kim, I could make your life very hard or very easy at Burlington." (Id.). Ellerth understood this comment to mean that she would have to have sex with Slowik to succeed at Burlington. (Ellerth Aff. ¶ 22). Ellerth could not recall seeing Slowik again during her week in North Carolina, and believed that that evening was the only time she talked to him that week.

Following the North Carolina trip, Ellerth next specifically recalled seeing Slowik in the fall of 1993 when he visited the Chicago office.³ Ellerth was on the floor folding fabric samples when Slowik walked by with another employee and allegedly commented, "on your knees again, Kim?" (Def.'s Facts ¶ 32). Ellerth understood the comment to be a reference to fellatio, which she found to be degrading and offensive. (Ellerth Aff. ¶ 27). On another occasion during which Slowik was in the Chicago office in the fall of 1993, he was making phone calls from Ellerth's office and when she walked in to the office, Slowik commented, "It's nice to have my butt where your butt was, Kim." (Def.'s Facts ¶ 34).

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