Van Jelgerhuis v. Mercury Finance Co.

• Citation: 940 F.Supp. 1344
• Decision Date: 19 September 1996
• Docket Number: No. IP 95-0275-C-B/S.,IP 95-0275-C-B/S.
• Parties: Kimberly S. VAN JELGERHUIS, Janice L. Brooks, and Kathy L. Page-Nowlin, Plaintiffs, v. MERCURY FINANCE COMPANY and Jim Johnson, Defendants.
• Court: United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)

940 F.Supp. 1344

Kimberly S. VAN JELGERHUIS, Janice L. Brooks, and Kathy L. Page-Nowlin, Plaintiffs, v. MERCURY FINANCE COMPANY and Jim Johnson, Defendants.

No. IP 95-0275-C-B/S.

United States District Court, S.D. Indiana, Indianapolis Division.

September 19, 1996.

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David W. Gray, Lewis & Kappes, Indianapolis, IN, for Plaintiffs.

Harry L. Gonso, Ice Miller Donadio & Ryan, Indianapolis, IN, Eugene Kelley, Jr., Arnestein & Lehr, Chicago, IL, for Defendants.

ENTRY DISCUSSING PARTIAL GRANT OF SUMMARY JUDGMENT

BARKER, Chief Judge.

Plaintiffs, Kimberly Van Jelgerhuis ("Van Jelgerhuis"), Janice Brooks ("Brooks") and Kathy Page-Nowlin ("Nowlin") have sued Defendants, Mercury Finance Company of Indiana, Inc. ("Mercury") and their former supervisor, Jim Johnson ("Johnson"), for sexual harassment in the form of disparate impact, disparate treatment and hostile work environment claims, as well as for invasion of privacy and intentional infliction of emotional distress. Defendants have moved for summary judgment. For the reasons discussed below, this motion is granted in part and denied in part.

I. STATEMENT OF FACTS

Plaintiffs worked in the Southside Branch of Mercury, an installment contracts purchasing corporation, where Johnson was the regional supervisor. It is undisputed that at all times during plaintiffs' employment, Mercury had a published policy against sexual harassment. That policy states:

It is the policy of the Company that sexual harassment of employees in the workplace is unacceptable and will not be tolerated. Appropriate management and supervisory personnel shall take prompt, corrective action when they become aware of sexual harassment. Any employee who feels that they have been the victim of sexual harassment should notify their supervisor or the Director of Human Resources. All such matters will be handled on a strictly confidential basis.

Defendants' Ex. F. In addition, on May 31, 1994, a memorandum was issued to all Mercury employees stating:

In an effort to foster an honorable work environment [at Mercury], we want to offer employees every opportunity to voice their concerns and/or questions regarding moral, ethical or legal business issues. As a result, we have created the MFC EMPLOYEE HOTLINE which is a 24 hour toll-free phone number that enables employees to confidentially and anonymously, if desired, address any questionable activities that may occur in the branches ... [T]he MFC Employee Hotline provides an alternative in instances where employees prefer to voice their concerns outside normal management channels. By ensuring that all business activities are in compliance with our policies and the law, we are able to maintain an environment of integrity and respect. We hope that this confidential "1-800" number will free all employees from worrying about any issues that may affect their professionalism, business/peer relationships or application of policy.

Plaintiffs' Ex. G (emphasis in original). The memorandum was signed by the President of Mercury. Id.

The picture of the work environment at Mercury's Southside branch as painted by the plaintiffs is hardly a pleasant one. Johnson allegedly mistreated a number of the staff there, men as well as women. However, all three plaintiffs allege that Johnson specifically harassed them on the basis of their sex.

Van Jelgerhuis' Claims:

According to Van Jelgerhuis, around February 9, 1993:

Jim Johnson stated that in his dream, we had made a bet that if I lost weight, he would `eat me out.' He said that in his dream, I had come into the office and was wearing a short skirt with no underwear and jumped up on his desk and said `O.K. I win, now eat me out.'

Plaintiffs' Ex. B at 3(a); Van Jelgerhuis Dep. at 252-58. A few months later, Johnson described another dream to Van Jelgerhuis, after first thanking her for "last night":

I ... asked him what he was talking about. He then said that he had a dream about me and in his dream, I was sitting at my desk without a shirt or bra. He said that in his dream, he came in and started sucking on my right breast and said `Boy, was it sweet.' After he said this, I became embarrassed and started to walk away from him and out of his office when he said, `Who are you going to tell? my wife? your husband?'

Plaintiffs' Ex. B at 3(a); Van Jelgerhuis Dep. at 263-65. In addition to his dream reports to Van Jelgerhuis, Johnson often made comments about Van Jelgerhuis' physical appearance making numerous references to her "fat ass" and the size of her breasts. Plaintiffs' Ex. B at 3(a); Van Jelgerhuis Dep. at 149. Johnson allegedly inquired why her husband would stay with her, given that Van Jelgerhuis was, supposedly, so fat. Plaintiffs' Ex. B at 3(a). In addition, Johnson would comment on Van Jelgerhuis' clothes and demeanor, and, on at least one occasion, Johnson allegedly implied that Van Jelgerhuis looked like a "hooker working at a truck stop." Van Jelgerhuis Dep. at 271. Van Jelgerhuis also saw Johnson make sexually harassing comments about other women in the office as well during her employment there. See, e.g., Van Jelgerhuis Dep. at 216 ("I've seen Jim Johnson stand in his office and holler about the girl's chest in the front of the office."). And, she maintains that there were additional incidents of harassment by Johnson. Van Jelgerhuis at 277 ("Oh, I'm sure that there's lots more than we haven't even begin [sic] to get into."). As a result of Johnson's harassment, Van Jelgerhuis testified that she had to be prescribed antidepressant drugs to alleviate a nervous condition. Van Jelgerhuis Dep. at 285.

According to Van Jelgerhuis, she informed Larry Markle, Johnson's counterpart at Mercury's Anderson Branch, of the February 1993 Johnson dream incident. Van Jelgerhuis Dep. at 153. Van Jelgerhuis maintains that on two different occasions she also spoke about the problems with Johnson with Joe Carson. Van Jelgerhuis Dep. at 151-52, 164. Carson, a subordinate of Johnson's at the Southside Branch, was the Branch Operations Manager as well as Van Jelgerhuis' direct supervisor. Van Jelgerhuis at 162. Van Jelgerhuis also maintains that she attached an anonymous letter to a Mercury workplace survey distributed by Mercury's president, John Brincat. Van Jelgerhuis Dep. at 144. Although the letter identified neither Van Jelgerhuis nor her branch, it apparently described in fairly specific terms the work environment its author endured. Van Jelgerhuis Dep. at 148-50 (describing letter's contents as including accounts of Johnson's behavior in the office as well as recommendation that "someone investigate the office" because the work environment was insufferable). Van Jelgerhuis maintains that the letter was three-pages long. Van Jelgerhuis at 150.

The only response that Van Jelgerhuis ever received from Mercury regarding her complaints came from Joe Carson:

What do you want me to do[?] If I say it to him [Johnson], he's going to ride you harder.... If I don't say anything you're going to be upset.... What do you expect me to do about it?

Van Jelgerhuis Dep. at 152. Van Jelgerhuis allegedly replied to Carson: "I don't know what you're supposed to do about it, Mr. Carson, but we shouldn't have to go through this day in and day out." Id.

Although Van Jelgerhuis did report Johnson's harassment on these occasions, she concedes that she never contacted Dan Smith, the Mercury employee designated to receive complaints of sexual harassment. Van Jelgerhuis Dep. at 299-301. This was the case notwithstanding that Smith actually telephoned her on one occasion about the alleged sexual harassment of another Mercury employee. Van Jelgerhuis Dep. at 301. Van Jelgerhuis maintains that she did not report Johnson to Smith because she was afraid of losing her job. Id. She also maintains that as part of his campaign of harassment, Johnson would manipulate her by lessening his harassment if he sensed that she was going to report him. Van Jelgerhuis Dep. at 153, 299-300. When Van Jelgerhuis finally confronted Johnson directly, Johnson told her that her "services were no longer needed." Van Jelgerhuis Dep. at 173. At that point, when she asked for permission to contact Smith, Johnson told her it was "too late." Id.

Brooks' Claims:

Brooks contends that Johnson sexually harassed her as well during her employment at the Mercury Southside Branch. Brooks was employed at the Southside Branch as a cashier, starting in October 1990; however, a year and a half prior to her leaving, Brooks was relocated to a work station approximately twenty feet from Johnson's office. She maintains that at that point Johnson's harassment of her became more "frequent." Brooks Dep. at 68. During this time, according to Brooks, Johnson referred to her as "fat" and "ugly" on innumerable occasions, Brooks Dep. at 114 ("I couldn't count the number of times"), and on more than ten occasions, he remarked on her "fat ass" as she bent over at a file cabinet. Brooks Dep. at 98-100. At least once a month, he allegedly commented on the fact that Brooks was not married to her live-in companion, focusing on the "sex part of it ... eight or nine times." Brooks Dep. at 115-16.

I could just walk in [Johnson's] office and he could say something to the extent that you're so fat, I just don't see how anybody could sleep with you, I don't see how [your boyfriend] can make love to you, how you can do anything, how you can keep him satisfied....

Brooks' Dep. at 117.

Johnson also allegedly commented about once a month on the size of Brooks' breasts during that same year and a half period, stating that Brooks' "boobs were two different sizes." Brooks Dep at 100, 104. He also, on separate occasions, commented on Brooks' bras. Brooks Dep. at 103. Brooks maintains that there were other, additional incidents of harassment involving Johnson. Brooks...