Nischan v. Stratosphere Quality, LLC
| Decision Date | 02 August 2017 |
| Docket Number | No. 16-3464,16-3464 |
| Citation | 865 F.3d 922 |
| Parties | Michele NISCHAN, Plaintiff–Appellant, v. STRATOSPHERE QUALITY, LLC; FCA US LLC f/k/a Chrysler Group LLC; and Abbas Sabbah, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Uche O. Asonye, Attorney, Renee C. Fell, Attorney, ASONYE & ASSOCIATES, Chicago, IL, for Plaintiff–Appellant.
Alex P. Aguilera, Attorney, Charlie James Harris, Jr., Attorney, SEYFERTH, BLUMENTHAL & HARRIS, LLC, Kansas City, MO, for Defendant–Appellee FCA US LLC, formerly known as Chrysler Group LLC.
Matthew P. Barrette, Attorney, SULLIVAN HINCKS & CONWAY, Oak Brook, IL, for Defendant–Appellee Abbas Sabbah.
Duane R. Denton, Attorney, BINGHAM GREENEBAUM DOLL, LLP, Indianapolis, IN, for Defendant–Appellee Stratosphere Quality, LLC.
Before Posner, Manion, and Kanne, Circuit Judges.
Michele Nischan alleges that she was fired from her job for filing a sexual-harassment complaint. Consequently, she brought a litany of claims in the Northern District of Illinois, suing three defendants: Stratosphere Quality, LLC—her employer; Chrysler Group LLC—her employer's client; and Abbas Sabbah—her purported harasser. The district court dismissed her claims.
We respectfully disagree with the court's decision regarding Nischan's sexual-harassment claim against Stratosphere: Nischan offered sufficient evidence supporting that claim to avert Stratosphere's motion for summary judgment. And to that extent, we reverse and remand the case. But we otherwise affirm.
Stratosphere provides third-party inspection and quality-control services to car manufacturers. One of Stratosphere's major clients was Chrysler. As relevant here, Chrysler hired Stratosphere to inspect thousands of cars at a large parking lot in Belvidere, Illinois. Stratosphere also provided services to six other companies in the Belvidere area.
On June 5, 2012, Stratosphere hired Nischan as a car inspector. Her formal position was "team lead." A month later, Stratosphere promoted her to "project supervisor." As a project supervisor, Nischan reported directly to her supervisor Davina Turluck. Turluck, in turn, reported to Jim Harris—an "operations manager" whose job entailed planning for project costs, overseeing and reviewing projects, and responding to customer complaints.
Nischan's work at Stratosphere required frequent contact with a coworker named Sabbah. Sabbah was not a Stratosphere employee. Instead, he worked for Chrysler as a liaison to Stratosphere.
Nischan claims that Sabbah sexually harassed her, and did so relentlessly. The alleged harassment includes Sabbah routinely rubbing his penis on her hip and buttocks; hugging her, while moaning; pressing himself against her breasts, while moaning; commenting that her breasts were really firm; asking her if her breasts were real and what size they were; asking her whether she liked small, medium, or large penises; asking her on dates, and once promising her a night that she would never forget; putting his arm around her; rubbing her thigh; staring at her breasts; and making uncomfortable eye contact with her.
She further contends that high-level Stratosphere employees knew about the harassment, having witnessed it firsthand. Specifically, she claims that Sabbah once rubbed his erect penis on her in a work trailer in front of Harris and a project supervisor named Michelle Blackman. Nischan says that she then ran out of the trailer crying and that Blackman came out to console her.
The last alleged instance of sexual harassment occurred on September 22, 2012. Nischan claims that Sabbah made a comment about how she would be a lonely empty nester soon because her son was going to leave home and join the Navy. Sabbah allegedly then propositioned her and asked for her phone number. According to Nischan, this was the straw that broke the camel's back: she loudly rebuffed his advance, demanding that he stop bothering her.
Sabbah denies all of these allegations.
Apart from this purported harassment, Nischan had other problems at work, namely with her performance. In August 2012, she made numerous mistakes, causing Turluck and Harris to intervene and provide direction. By September 2012, Turluck and Harris had "completely lost faith in [Nischan's] ability to perform the tasks associated with being a [project supervisor]." (R. 83-10 at 2.) So they decided to demote her back to the position of team lead.
But on September 24, 2012, Nischan had another slipup that caused Turluck and Harris to "change the course of action [they had] decided on." (R. 83-16 at 3.) While on the lot, Nischan was demonstrating to her crew how to inspect a vehicle's brake-line clips for defects. But instead of checking near the wheels (where the clips are located), she popped the hood. She admitted that this was a "pretty serious" mistake and a major safety issue. (R. 106-1 at 188.)
What's worse, she made this mistake in front of Sabbah. Consequently, Sabbah demanded that Stratosphere remove her from the lot because he did not "trust her inspecting vehicles." (R. 83-16 at 2.) It took two days and multiple protests, but on September 26, 2012, Stratosphere complied with Sabbah's request.
Stratosphere, however, did not fire Nischan; rather, Turluck told her to contact the scheduling department to see if there was work at another lot in Belvidere. But she chose to file for unemployment instead.
On October 8, 2012, Nischan lodged a sexual-harassment complaint with Stratosphere. Stratosphere subsequently turned the matter over to its legal counsel.
On December 20, 2013, Nischan sued Stratosphere, Chrysler, and Sabbah in the Northern District of Illinois. Her complaint charges the defendants with sexual harassment, sex discrimination, and retaliation in violation of both Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq . and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq . ("IHRA"). The complaint also asserts Illinois common-law claims for intentional infliction of emotional distress and battery.
On September 23, 2014, the district court partially granted the defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), disposing of all Title VII claims against Sabbah, the IHRA sexual-harassment and sex-discrimination claims against Sabbah, the battery claim against Stratosphere, and the intentional-infliction-of-emotional-distress claims against all of the defendants. The court subsequently reinstated the IHRA sexual-harassment claim against Sabbah.
On January 11, 2016, the court granted the defendants' motions for summary judgment under Federal Rule of Civil Procedure 56, dismissing the remaining Title VII and IHRA claims. The court then relinquished jurisdiction over the state-law battery claims against Chrysler and Sabbah.
Nischan timely appealed.
On appeal, Nischan challenges the district court's grant of the defendants' motions to dismiss and for summary judgment, disposing of her claims for sexual harassment, sex discrimination, retaliation, intentional infliction of emotional distress, and battery.
We review these decisions de novo . Rockwell Automation, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, P a. , 544 F.3d 752, 756 (7th Cir. 2008). Regarding the claims dismissed under Rule 12(b)(6), we accept all well-pled facts as true and construe all inferences in the nonmovant's favor, granting the motion only when the complaint fails to allege facts sufficient to "state a claim to relief that is plausible on its face." Berger v. Nat'l Collegiate Athletic Ass'n , 843 F.3d 285, 289–90 (7th Cir. 2016) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). And regarding the claims dismissed under Rule 56, we construe all facts and reasonable inferences in the nonmovant's favor, granting summary judgment only when "the admissible evidence shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Tapley v. Chambers , 840 F.3d 370, 376 (7th Cir. 2016) (quoting Hanover Ins. Co. v. N. Bldg. Co. , 751 F.3d 788, 791 (7th Cir. 2014) ).
With these standards in mind, we address each of Nischan's dismissed claims in turn.
Nischan's first claim is for sexual harassment. To prevail on this claim, Nischan must show that (1) she endured unwelcome sexual harassment; (2) she was harassed because of her sex; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile work environment; and (4) there is a basis for employer liability. Turner v. The Saloon, Ltd. , 595 F.3d 679, 684 (7th Cir. 2010). The district court did not address the first three elements, and the parties don't dispute those elements here. The only issue before us is whether "there is a basis for employer liability." Id . We address this issue with respect to each defendant.
Chrysler can incur liability for sexual harassment only if Nischan can "prove the existence of an employer-employee relationship" with Chrysler. Love v. JP Cullen & Sons, Inc. , 779 F.3d 697, 701 (7th Cir. 2015). The problem Nischan faces is that Chrysler was not Nischan's direct employer—Stratosphere was. Even so, "a plaintiff can, under certain limited circumstances, bring a claim against a defendant who is not [her] direct employer." Id . Nischan contends that, although Chrysler was not her direct employer, it had sufficient authority over her to be considered a "joint employer" with Stratosphere.
To test Nischan's theory, we employ a five-factor test, considering the following things:
(1) extent of the [purported] employer's control and supervision over the worker, including directions on scheduling and performance of work, (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace, (3) responsibility for the costs of operation, such as equipment, supplies,...
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