Hartman v. Pena

• Decision Date: 28 December 1995
• Docket Number: No. 94 C 5416.,94 C 5416.
• Citation: 914 F. Supp. 225
• Parties: Douglas P. HARTMAN, Plaintiff, v. Federico F. PENA, Secretary of Transportation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

914 F. Supp. 225

Douglas P. HARTMAN, Plaintiff, v. Federico F. PENA, Secretary of Transportation, Defendant.

No. 94 C 5416.

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

December 28, 1995.

Phillip S. Wood, Wood & Johnson, Aurora, IL, for plaintiff.

Daniel Edward May, United States Attorney's Office, Chicago, IL, for defendant.

OPINION AND ORDER

NORGLE, District Judge:

Plaintiff Douglas Hartman complains that he was a victim of "Malehook,"¹ the inverse of the infamous 1991 Tailhook Convention, at a cultural diversity workshop ("CDW") sponsored by his employer, the Federal Aviation Administration ("FAA"). Hartman alleges that, in violation of Title VII of the Civil Rights Act of 1964, he suffered sexual harassment and religious discrimination at the CDW, and retaliation for having filed a complaint with the Equal Employment Opportunity Commission. Before the court is Defendant's motion for summary judgment. For the reasons that follow, Defendant's motion is granted in part and denied in part.

I.

Programs like the CDW, which spawned the facts here, are not uncommon. Due to the rash of discrimination lawsuits over the last decade, many entrepreneurial opportunists have promised employers that they could reduce exposure to liability via "sensitivity" training. John Barnes, Does Diversity Help Business?, Investor's Business Daily, May 17, 1995, at A1 (estimating that there are over 5,000 "diversity consultants" who charge between $1,500 to $2,000 a day).

The CDW was a three day program which began in June 1992.² It was, and is, the prototype for future FAA workshops. The CDW was not held at the FAA's Chicago Air Route Traffic Control Center ("Chicago Control Center") but at a nearby town. The FAA paid for and encouraged its employees to participate in the program. Indeed, the FAA employees also received regular pay and benefits during the program, and the CDW itself was directed by a mixture of FAA employees and diversity contractors. Although the FAA established a process to excuse employees who did not wish to attend, employees who postponed attendance were required to attend the next scheduled session. (Pl.'s 12(N) ¶ 69.) At the workshop, the directors would conduct a number of exercises for the employees. Hartman declined to take part in the CDW at least two times before he agreed to attend. Hartman claims that, during some of the CDW exercises and discussions, his civil rights were violated.

Hartman was an air traffic controller with the FAA at the Chicago Control Center. Hartman was also a representative for the air traffic controller's union. The principal component of Hartman's Complaint involves a "role-reversal" exercise wherein the directors instructed male employees to walk between two lines of female employees — what Hartman describes as a gauntlet. Defendant contends that the exercise was constructed to mimic the physical environment at the Chicago Control Center and was intended to simulate the experiences women encountered there and in the FAA generally. (Def.'s 12(M) Statement ¶ 22; Def.'s Ex. 14 at 9.) "Women participants in the exercise would make comments to men who proceeded through a line of women while the women may have touched the men on the arm or may have given the man a `little slap on the butt.'" (Def.'s 12(M) ¶ 24.) "Generally, the men who participated felt embarrassed and uncomfortable about doing the exercise." (Def.'s 12(M) ¶ 40.) Hartman was aware of the nature of the exercise before he attended the CDW. However, while at the CDW, Hartman testified that he did not wish to participate in the exercise (the parties dispute at what point in time he expressed his disapproval). Others voiced their disdain for Hartman because he expressed unwillingness to join in the exercise. Once he acquiesced to proceed between the women, he claims that the women touched his genitalia and other parts of his body, while the preceding male participants laughed and derided him. Defendant admits that Hartman was touched but not as he described.

Following the gauntlet, the directors conducted a discussion. At the discussion, Hartman and the other men were numerically rated with their names on a chart subscribed to drawings of male genitalia. The chart illustrated human penises in various states of arousal. The participants rated Hartman the lowest.³

Hartman's claims of religious and racial discrimination stem from comments which the directors made in the discussions. Hartman asserts that the directors made comments about his religion to the group and did not afford him the opportunity to respond. The racially charged comments were made occasionally throughout the CDW.

Hartman also claims that Defendant retaliated against him for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). Hartman filed his EEOC complaint on September 23, 1992, and alleged gender and religious discrimination. Hartman did not receive "quality step increases" in 1991-1992 and 1992-1993, and he argues it was in retaliation to his EEOC filing. Defendant contends that Hartman did not receive the increases due to poor work performance. Hartman disputes this, but does not offer any evidence to contradict Defendant's statement. (Pl.'s 12(N) ¶ 61.)

II.

To survive a motion for summary judgment, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Russell v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir.1995). Summary judgment is not a discretionary remedy and must be granted when the movant is entitled to it as a matter of law. Anderson v. P.A. Radocy & Sons, Inc., 67 F.3d 619, 621 (7th Cir.1995). In the instant case, the court finds that there are genuine issues of fact as to one of Hartman's claims, but not as to the others.

Regarding the Complaint, the court agrees with Defendant that it may be distilled to three major allegations: (1) the CDW was sexually offensive and demeaning to Hartman; (2) Hartman endured religious and racial discrimination at the CDW; and (3) Defendant retaliated against Hartman after he filed an EEOC complaint. All claims are premised on Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-16(a). To prove a Title VII claim, a plaintiff may establish that the employer had a discriminatory intent in either of two ways. The plaintiff may establish his case either directly, through direct or circumstantial evidence, or indirectly, through the burden shifting method commonly referred to as the McDonnell Douglas test. Kormoczy v. Secretary, Dept. of Housing & Urban Dev., 53 F.3d 821, 823-24 (7th Cir.1995). Hartman attempts to prove his claims through the indirect method.

III.

Hartman's first claim involves gender discrimination. More specifically, Hartman alleges that he was sexually harassed. Sexual harassment is a recognized subset of gender discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63-7, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d 49 (1986). Title VII prohibits unwelcome sexual advances as creating an offensive or hostile working environment and treats the advances as discrimination. Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir.1994). There are two categories of sexual harassment. The first is quid pro quo sexual harassment. A quid pro quo sexual harassment claim involves sexual demands made by an employer on an employee as a condition of employment. Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir.1990). The second category is hostile environment sexual harassment. A hostile, or abusive, environment claim involves sexually charged conduct which was so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive working environment. Chalmers v. Quaker Oats Co., 61 F.3d 1340, 1345 (7th Cir.1995). The focus in a hostile environment claim is not on the victim's economic loss as in the quid pro quo cases, but rather on the victim's altered employment conditions resulting from sexually charged conduct. Because the language of Title VII is not limited to economic or tangible discrimination, Meritor Savings Bank v. Vinson, 477 U.S. 57, 63-5, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986), and because Congress intended to eradicate the entire spectrum of disparate treatment of men and women in employment, id., "concrete psychological harm" is not a predicate to maintain a claim of sexual harassment. Harris v. Forklift Sys., Inc., ___ U.S. ___, ___ - ___, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993). "A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers." Id. "So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious." Id. at ___, 114 S.Ct. at 371 (citation omitted).

In Harris, the Supreme Court explained that "this standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury." Id. at ___, 114 S.Ct. at 370. Language which may generate offensive feelings is not enough to affect employment conditions and involve Title VII. "But Title VII comes into play before the harassing conduct leads to a nervous breakdown." Id. at ___, 114 S.Ct. at 370; see Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir.1995). Mindful of these parameters, the Court mapped out a two-prong analysis by which to measure the environment in question. See Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir.1994) (applying the two-part analysis to those facts). First, the conduct must be subjectively hostile....