Miller v. Vesta, Inc., 94-C-1270.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Citation946 F.Supp. 697
Docket NumberNo. 94-C-1270.,94-C-1270.
PartiesElizabeth R. MILLER, Plaintiff, v. VESTA, INC., Defendant.
Decision Date22 November 1996
946 F.Supp. 697
Elizabeth R. MILLER, Plaintiff,
VESTA, INC., Defendant.
No. 94-C-1270.
United States District Court, E.D. Wisconsin.
November 22, 1996.

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Mara Pehkonen-Theno, Theno Law Office, Cudahy, WI, for Plaintiff.

Scott C. Beightol, John J. Kalter, Michael, Best & Friedrich, Milwaukee, WI, for Defendant.




Plaintiff Elizabeth R. Miller, a former employee of defendant Vesta, Inc. ("Vesta"), filed this action pursuant to Title VII of the

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Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., on November 14, 1994. She filed an amended complaint on June 19, 1995. The case was assigned to United States Magistrate Judge Aaron E. Goodstein. On August 25, 1995, Magistrate Goodstein ordered, pursuant to the parties' stipulation, that Miller's first and second causes of action in the amended complaint be consolidated as a single cause of action for hostile environment sexual harassment. He also ordered that Miller's third and fourth causes of action remain unaltered. Thus, Miller claims that Vesta discriminated against her on the basis of her sex through both a hostile environment and disparate treatment, and that Vesta discharged her in retaliation for her complaints about sexual harassment by another employee, Lana Schuelke. Miller seeks reinstatement, back pay, and actual, punitive and compensatory damages.

Jurisdiction is proper under 28 U.S.C. § 1331. Venue is proper in this district. Vesta moved to dismiss the action for failure to state a claim, Fed.R.Civ.P. 12(b)(6) and for summary judgment, Fed.R.Civ.P. 56(b). On September 4, 1996, Magistrate Goodstein recommended that Vesta's motion to dismiss be denied, that its motion for summary judgment be granted, and that Miller's complaint and this action be dismissed. The case was assigned to this court for consideration of the recommendation. Miller timely filed objections to the magistrate's recommendation.


Magistrate Goodstein had limited jurisdiction, because the parties did not consent to magistrate jurisdiction. 28 U.S.C. § 636(b)(1)(B). Where a party objects to a magistrate's findings, the district court judge must make de novo determinations as to these findings. 28 U.S.C. § 636(b)(1)(C); U.S. v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 2411-13, 65 L.Ed.2d 424 (1980); Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986); Ramirez v. Turner, 991 F.2d 351, 354 (7th Cir.1993). The court may review other portions of the recommendation if appropriate. Delgado, 782 F.2d at 82 (7th Cir.1986); Local Rule 13.02(b). "Although, in absence of such objections, the Court need not make any review, `the better practice' is to afford `some level of review' to dispositive issues, even where a de novo determination is not required." Zimbauer v. Milwaukee Orthopaedic Group, Ltd., 920 F.Supp. 959, 963 (E.D.Wis.1996) (Warren, J.) (quoting Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.), cert. denied, 484 U.S. 837, 108 S.Ct. 120, 98 L.Ed.2d 79 (1987)). The district court may adopt the recommendation in part or in whole and has final authority of judgment in the case. Delgado, 782 F.2d at 82.

A. Legal Standard

The court may dismiss a complaint pursuant to a Rule 12(b)(6) motion "only if `it is clear beyond doubt that the non-movant can plead no facts that would support his claim for relief.'" Palda v. General Dynamics Corp., 47 F.3d 872, 874 (7th Cir.1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In considering dismissal, the court must "accept as true all the plaintiff's well pleaded factual allegations and the inferences reasonably drawn from them." Gibson v. City of Chicago, 910 F.2d 1510, 1520-21 (7th Cir.1990); see also Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir.1996).

B. Hostile Environment Claim

Although the parties have not objected to the magistrate's recommendation that the motion to dismiss Miller's hostile environment claim be denied, the motion presents an issue of law unresolved by the Seventh Circuit. For this reason, the court will review de novo the magistrate's conclusion that sexual harassment by a person of the same sex as the plaintiff is actionable under Title VII.

The court holds that Title VII prohibits sexual harassment, in the form of a hostile environment, by a person of the same sex as the victim of the harassment. In so deciding, this court agrees with both the magistrate's recommendation and with Judge Warren's conclusion in Johnson v. Hondo, Inc., 940 F.Supp. 1403, 1409 (E.D.Wis.1996) (Warren, J.). These decisions comport with the language

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of the statute and with the majority of federal court decisions addressing the issue.

Title VII of the Civil Rights Act of 1964 prohibits discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has held that Title VII prohibits sexual harassment as a form of sex discrimination. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). There are two cognizable forms of sexual harassment under Title VII: (1) quid pro quo harassment, in which a superior requires sexual relations with an employee in return for job benefits; and (2) hostile or abusive work environments. Harris v. Forklift Systems, Inc., 510 U.S. 17, 20, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); Meritor, 477 U.S. at 64, 106 S.Ct. at 2404. Under Title VII, a hostile or abusive work environment is one in which "discriminatory conduct [is] so severe or pervasive that it create[s] a work environment abusive to employees because of their race, gender, religion, or national origin...." Harris, 510 U.S. at 22, 114 S.Ct. at 371. Miller has made a claim of hostile environment sexual harassment.

The court bases its conclusion that Title VII encompasses claims of same-sex hostile environment sexual harassment upon first, the language of the statute and the Supreme Court's interpretations of it; second, the Equal Employment Opportunity Commission ("EEOC")'s interpretation of the statute; third, the weight of persuasive authority on the issue; and fourth, the lack of definitive Congressional intent, as revealed in contrary authority.

First, Title VII's plain language is broad and does not limit its prohibition on sex discrimination to discrimination of one sex by the other. The first step in statutory construction is reading "the language of the statute." Bailey v. U.S., ___ U.S. ___, ___, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). "Where the statutory language is clear, our sole function is to enforce it according to its terms." Rake v. Wade, 508 U.S. 464, 471, 113 S.Ct. 2187, 2191, 124 L.Ed.2d 424 (1993) (internal quotations and citation omitted). "When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning." Smith v. U.S., 508 U.S. 223, 228, 113 S.Ct. 2050, 2053, 124 L.Ed.2d 138 (1993); accord, Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir.1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d 304 (1985).

The Supreme Court has indicated that Title VII uses "sex" in the sense of "gender." Price Waterhouse v. Hopkins, 490 U.S. 228, 239-41, 109 S.Ct. 1775, 1784-86, 104 L.Ed.2d 268 (1989) (using the terms "gender" and "sex" interchangeably); Harris, 510 U.S. at 22, 114 S.Ct. at 371 (Title VII violation occurs when "discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender). The language of Title VII simply bars discrimination based on an employee's sex and does not speak to the harasser's gender. It is not the courts' role to limit the protections Congress conferred by selecting broad and general language. "Had Congress intended to insulate sexual harassers from liability as long as those sexual harassers selected their victims carefully, not only should Congress have spoken more clearly, it could have at least said something." Williams v. District of Columbia, 916 F.Supp. 1, 9 (D.D.C.1996).

The case law further indicates that Title VII is blind to the gender of the harasser. The statute bars hostile environment sexual harassment "based on sex." Meritor, 477 U.S. at 66, 106 S.Ct. at 2405. The relevant sex and perspective are that of the victim: "Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor `discriminate[s]' on the basis of sex." Id. at 64, 106 S.Ct. at 2404. "The gravamen of any sexual harassment claim is that the alleged sexual advances were `unwelcome.'" Id. at 68, 106 S.Ct. at 2406. This language implies no requirement that the harasser be of the opposite sex from the victim. Instead, the perspective is that of the victim, and the offensive conduct is based on the sex of the victim.

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To the degree there is ambiguity in Title VII, the court finds some of the EEOC's reasoning persuasive. The Supreme Court has stated that the EEOC Guidelines on sexual harassment are an "administrative interpretation of the Act by the enforcing agency" that, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (internal citations and quotations omitted).

The EEOC has determined that it is irrelevant whether the harasser and victim are of the same or different genders.

The victim does not have to be of the opposite sex from the harasser. Since sexual harassment is a form of sex discrimination, the crucial inquiry...

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