(Names have been changed)
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
SUMMARY JUDGMENT MOTION
V. ARGUMENT
A. Applicable Standards
Defendant’s motion for summary judgment fails under the direct method of proof. The Seventh Circuit has repeatedly stated that direct method of proof is applicable in Title VII retaliation cases. See, e.g., Gates v. Caterpillar, 513 F.3d 680, 686 (7th Cir. 2008); Caskey v. Colgate-Palmolive Co., 535 F.3d 585, 593 (7th Cir. 2008); Metzger v. Illinois State Police, 519 F.3d 677, 681 (7th Cir. 2008) (“[a] plaintiff alleging retaliation [under Title VII] can prove her case either by the direct or indirect method of proof.”).
A claimant succeeds in establishing unlawful retaliation under the direct method by presenting evidence of: “(1) a statutorily protected activity; (2) an adverse action; and (3) a causal connection between the two.” Squibb v. Memorial Medical Center, 497 F.3d 775, 786 (7th Cir. 2007), quoting Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 758 (7th Cir. 2006).
In defining the “direct method,” the Seventh Circuit holds that in addition to direct evidence, circumstantial evidence can support an inference of direct discriminatory intent by an employer. The Seventh Court recognizes four types of circumstantial evidence: (1) suspicious timing, (2) ambiguous statements oral or written, (3) behavior toward or comments directed at other employees in the protected group and (4) other bits and pieces from which an inference of discriminatory intent might be drawn. Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).
The Seventh Circuit, in Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900 (7th Cir. 2006), further clarified the direct method doctrine. Sylvester states that the intention in Troupe was not to require that circumstantial evidence must “have a mosaic-like character.” 453 F.3d at 904. All that is necessary is that there is enough circumstantial evidence to preclude summary judgment. Id.
B. Plaintiff Engaged in a Statutorily Protected Activity
As a preliminary matter, Plaintiff must establish that she had a sufficient basis to complain to Angela Keane and Denise Canfield about Pitt’s improper sexual conduct. Clark County School District v. Breeden, 532 U.S. 268, 271 (2001). In construing the holding in Breeden, the Seventh Circuit has stated that an employee must make an “objectively reasonable report” to be covered by the retaliation laws. Lang v. Northwestern University, 472 F.3d 493, 495 (7th Cir. 2006).
Defendant does not contest that Plaintiff had an “objectively reasonable” basis to complain to Keane and Canfield. Nor can Defendant do so. Plaintiff testified that Pitt (1) repeatedly stared at her when she went to and from the restroom, (2) looked down her shirt several times a day. (P. 56.1 Additional Facts 3 and 4), made her “very nervous” when he stared at her. (P. 56.1 Additional Fact 5), and (3) while training her moved the telephone cord attached to Plaintiff's headset from her lap and pressed one of his hands palm up on her inner thigh. (P. 56.1 Additional Fact 6). In addition, Truman also noticed that Pitt was staring at Pitt. (P. 56.1 Additional Fact 10). In particular, Truman noticed that Pitt stared at her when Plaintiff returned from Yoga exercisers on Defendant's premises and went to the restroom to change her clothing.
Defendant, however, contests whether Plaintiff engaged in a statutorily protected activity. Defendant argues that unless Plaintiff brought her complaints about Pitt’s inappropriate sexual conduct to the attention of Defendant through its formal complaint procedure, her complaints do not count. No published opinion of the Seventh Circuit supports this proposition.
Defendant’s reliance on Durkin v. Chicago, 341 F.3d 606, 614-615 (7th Cir. 2003), is misplaced. In Durkin, the employee’s complaints “were vague and concerned subject matters other than harassment.” Id. Durkin’s claims failed because there was no evidence that she complained about sex based discrimination prohibited by law. This is the reason why Durkin could not maintain a retaliation claim. Doherty v. Key Benefit Adm'rs, Inc., 2006 WL 2246402, *3 (S.D. Ill. 2006).
In Cerros v. Steel Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005), the Seventh Circuit clarified its holding in Durkin. “At bottom, the employer’s knowledge of the misconduct is what is critical, not how the employer came to have that knowledge.” Id. The inquiry is whether the employee “adequately alerted her employer to the harassment...not whether she followed the letter of the reporting procedures set out in the employer’s harassment policy.” Id.
Other Courts of Appeals have held that informal complaints may constitute protected activity. See, e.g., Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir.2000); EEOC v. Romeo Cmty. Schs., 976 F.2d 985, 989 (6th Cir.1992); EEOC v. White & Son Enters., 881 F.2d 1006, 1011-12 (11th Cir.1989).
Courts in this District have rejected Defendant’s “form over substance” view of retaliation law. When an employee unambiguously relates harassment in the workplace, Durkin does not apply. Jones-Walsh v. Town of Cicero, 2005 WL 2293671, *5 (N.D. Ill. Sept. 14, 2005). A retaliation “claim should be allowed to proceed as long [as the employee] can present evidence of the Defendant's knowledge of her claims of discrimination.” Antonetti v. Abbott Laboratories, 2008 WL 548763, *8 (N.D. Ill. Feb. 22, 2008). Anderson v. Follett Higher Educ. Group, 2007 WL 1521534,*28 (N.D. Ill. May 24, 2007).
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